Lesson 5: Child Protection

Society generally assumes that children are best raised by their biological/genetic parents,
and so does the law. However, this is not always the case, there are cases of physical, mental,
sexual abuse and neglect.
See the report and review on Canvas.
In the case of the state intervention, in these situations, there are several important factors,
such as poverty or under-funded social services. According to Roberts, 2014, there is a “toxic
trio” which is mental health issues, domestic abuse and substance misuse.
In these situations, the law’s role is to balance rights/interests. To protect child rights [as
defined by the best interests principle] and/or preserve families/promote a human right to
family life. Four approaches to law’s role/remit [Fox-Harding, 1996]:
a. Minimise/ avoid state intervention – laissez-faire, family sanctity, patriarchy.....sacred
hearth?
b. Paternalism [state] intervention – removal of children....social engineering? ‘baby
scoop’ era, indigenous children, mother-baby homes?
c. Birth/ original family is best? Preserve ties, allow contact – Element of intervention –
aim of support.
d. Child rights – child views, child voice

- Children Act 1989

The aims are to prioritise ‘looked after’ children. These children are dose clearly in state care
by court order, unequivocal. The previous legislation was ambiguous. Under the Children Act
1989, a child can only officially enter care as a result of a court order and there are clear
criteria which govern when such an order can be made. There is an emphasis upon
partnership, the local authority supports family; parents remain involved - ‘voluntary’
agreements, grounded in consent.
The duties placed upon the local authorities are established in the 1989 Act, Part III, these
are: Safeguard children in need (s.7), provide accommodation (s.20) and investigate welfare
(s.47). The 2004 Act established a multi-agency approach and introduction of Children’s
Commissions and safeguarding boards. We have to highlight the role of charities, kinship
care, NSPCC, CPAG.
- The ECHR
See the HRA98 which implements the ECHR [brings it into domestic law – creates binding
obligations].
Art 8 ECHR infringed when a family is separated ? Can be justified as necessary,
proportionate if it is done to protect a child.
Welfare paramountcy .....? What if a child is taken into care in error? Webster v Norfolk CC
[2009] EWCA Civ 59.
Note aspects of enforcement/ implementation of human rights. Substantive aspects – familial
separation, harm, best interests. Procedural aspects – decision making, facilitating contact,
gauging whether abuse has happened/ will happen.
W v UK [1988] 10 EHRR: Decision making processes matter. Art. 6 ECHR (fair hering).
State must take parental views/interests into account (proportionality). See:
o Re S [2010] EWCA Civ 421: 7 breaches of maternal and child human rights
o A local authority v F [2018] EWHC 451 – too much weight given to abusive father’s
wishes

- The Children Act 1989 s.20 [an alternative to Care proceedings?]

20 Provision of accommodation for children: general.
“(1)Every local authority shall provide accommodation for any child in need within their area
who appears to them to require accommodation as a result of—
(a)there being no person who has parental responsibility for him;
(b)his being lost or having been abandoned; or
(c)the person who has been caring for him being prevented (whether or not
permanently, and for whatever reason) from providing him with suitable
accommodation or care.”
- Children in Need s17 1989 Act
17 Provision of services for children in need, their families and others.
“(1)It shall be the general duty of every local authority (in addition to the other duties
imposed on them by this Part)
(a)to safeguard and promote the welfare of children within their area who are in need;
and
(b)so far as is consistent with that duty, to promote the upbringing of such children by
their families,by providing a range and level of services appropriate to those
children’s needs.
(10)For the purposes of this Part a child shall be taken to be in need if
(a)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 a local authority under this Part;
(b)his health or development is likely to be significantly impaired, or further impaired,
without the provision for him of such services; or
(c)he is disabled.”
Key cases:
a. R ( On the Application of G) v Southwark London Borough Council [2009] 3 All ER
189: C 16 when his mother excluded him from home – approached the local authority
 for an assessment of his needs.LA concluded he had a need for housing which could
be provided by homeless persons unitLordships clear that he was a child in need LA
was liable to accommodate him under s 20 Children Act 1989.

b. London Borough of Hackney V Williams [2018] UKSC 37

- Investigations by Local Authorities (Section 47 Investigations)

Local Authority duty to investigate the welfare of a child in their area when:
o Child subject to an Emergency Protection Order
o Child in Police Protection
o Child has contravened a curfew notice
o Local Authority has reasonable cause to suspect the child is suffering or likely to
suffer significant harm
Can obtain information from a wide range of sources – teachers, GP’s etc. No power to enter
home against parent’s will or to see a child ? Child Assessment Order.
- Emergencies

A) Police Protection
In cases requiring urgent action, police have powers to protect children – enable the police to
act without the delay of having to apply to the court s 46( 1) CA 1989
B) Emergency Protection Orders
Who can apply? Local authority, Authorised person e.g. NSPCC, Other.
Grounds: Reasonable cause to believe –likelihood of significant harm unless removed
from/kept in accommodation; Enquiries by LA; Urgency.
X Council V B and Others (Emergency Protection Orders) [2004] EWHC 2015( Fam)
The effects of emergency Protection Orders (EPO):
o Court can order child to be produced.
o Removal from home /prevent removal from LA accommodation.
o Parental responsibility – to applicant.
o Court can direct as to contact.
o Additional directions – e.g. assessment.
o 8 days max. can extend by a further 7 days, once only.
o Can be challenged after 72 hours provided the applicant was not in attendance at the
original hearing.
Langley v Liverpool City Council (See case)
- Secure Accommodation and Deprivation of Liberty
25. Use of accommodation for restricting liberty.
“(1)Subject to the following provisions of this section, a child who is being looked after by a
local authority in England or Wales may not be placed, and, if placed, may not be kept, in
accommodation ...... provided for the purpose of restricting liberty (“secure accommodation”)
unless it appears—
(a)that—
(i)he has a history of absconding and is likely to abscond from any other description
of accommodation; and
(ii)if he absconds, he is likely to suffer significant harm; or
(b)that if he is kept in any other description of accommodation he is likely to injure himself
or other persons.”
Child’s welfare not the paramount consideration – one of the purposes of the order is for the
protection of the public, in which case order may be justifiable even if not for the child's
benefit. Significant Lack of provision – on occasion local authorities have wished to detail a
troubled teenager but outside of a secure unit. Local authorities seek to use inherent
jurisdiction as a way of getting the authorisation – application for Deprivation of Liberty
-