1.6 Legal Framework for Safeguarding Children in Individual Cases

Key Themes
The Public Law Outline and Revised Children Act 1989 Guidance Relating to Court Orders
Family Support and Prevention
Children In Need
The Local Authority's Duty to Investigate
The Duties of Other Agencies and Persons to Co-operate
Child Assessment Order (S43 Children Act 1989)
Exclusion Orders
Emergency Protection Order - (Section 44 Children Act 1999)
Recovery Orders (Section 50 Children Act 1989)
Power of Entry to Save Life or Limb
Police Protection (Section 46 Children Act 1989)
Care Orders
Care Proceedings
Supervision Orders
Contact Orders
Residence Orders
Prohibited Steps Order
Specific Issues Order
Special Guardianship Orders
Family Assistance Orders
Wards of Court
Placement Order
Child Curfew Order
Criminal Proceedings
Interviewing Child Witnesses
Parental Responsibility
Who May have Parental Responsibility
Possible Impact on Practice

1. Key Themes

The Children Act 1989 came into force on 14 October 1991. It provides a framework for the care and protection of children and has been amended since its initial introduction, most recently by the Adoption and Children Act 2002.

Section 1 of the Act sets out a number of principles which any Court shall have regard to when determining whether or not to make an Order, as follows:

a.	the child’s welfare is of paramount consideration
b.	delays in making a decision are presumed to be prejudicial to the child’s welfare
c.	the Welfare Checklist (does not apply to emergency orders, including secure accommodation orders), in particular the wishes and feelings of the child the child's physical, emotional and educational needs the likely effect of changes in circumstances the age, sex, background and any relevant characteristics any harm the child has suffered or is at risk of suffering parental capacity the range of Court Orders available
d.	no Order should be made unless the Court considers it is better for the child than making no Order at all. If an Order is made it should be the least interventionist necessary.

Section 3 of the Children Act introduces the concept of Parental Responsibility. A mother and married father always has Parental Responsibility for her child and there are a number of ways in which an unmarried father, and others, might also acquire it - see Section 28, Who May Have Parental Responsibility. A local authority acquires shared Parental Responsibility if it obtains an Emergency Protection Order, Interim Care Order or full Care Order and can then exercise it to safeguard and promote the child’s welfare. It can restrict the parents’ exercise of their Parental Responsibility but only to the extent required to achieve this.

The Act emphasises that the primary responsibility for looking after children rests with families and the local authority’s role is to help parents fulfil this responsibility, even if it has been restricted by a Court Order. Under these circumstances, local authorities are required to do all that is reasonable to keep parents informed, keep them involved in decision-making and promote contact with their children.

The Act tries to find a proper balance between the need to promote the welfare of the child and the need to respect the rights of families. This is reflected in the legislative safeguards which families have, especially when Court Orders are being made e.g. the duty to promote their reasonable contact with a Looked After Child.

This balance is also reflected in the provisions of the Human Rights Act 1998 which emphasises the requirements for any state intervention to be necessary and proportionate to achieve the desired outcome.

2. The Public Law Outline and Revised Children Act 1989 Guidance Relating to Court Orders

Since 1 April 2008, the Public Law Outline and revised statutory guidance in relation to Court orders has operated. Its objective is to minimise delay in completing Children Act cases involving the local authority (referred to as public law cases), so that, other than in exceptional or unforeseen circumstances, every public law case should be finally determined within a maximum of 40 weeks of the application being issued. Key aspects include:

the expectation that Core Assessments will have been carried out before Care Proceedings are issued
careful consideration given to the possibility of placing children with family or friends, whether as an alternative to proceedings or as a placement under a Care Order or Interim Care Order
a letter to parents before proceedings are started to give them an opportunity to obtain legal advice and possibly to avert the need for proceedings
improved preparation of documentation to support proceedings

See full text of the Public Law Outline.

3. Family Support and Prevention

Section 17 of the Children Act 1989 imposes upon local authorities a general duty to safeguard and promote the welfare of Children in Need (see definition below) and to promote the upbringing of such children by their families, so far as this is consistent with their welfare duty to the child, by providing an appropriate range and level of services, which may include the provision of accommodation. Partnership with parents, consultation with children, involving extended families and careful joint planning and agreement, are the guiding principles for the provision of services to children and their families within the family home or, where children live elsewhere, under voluntary and statutory arrangements. The convening of a Family Group Conference will be an important forum within which to achieve this in many cases.
Under Schedule 2 paragraph 4 of the Children Act 1989, local authorities are under a duty to take reasonable steps, through the provision of services for the child and his/her family, to prevent children within their area suffering Neglect or ill treatment. Additionally, a local authority is under a duty to inform another local authority if a child believed to be suffering Significant Harm has moved, or is about to move, to that authority’s area. Details of the harm and the address in which the child is or will be living should be passed on - see Children Moving Across Boundaries Procedure.
Under Schedule 2 paragraph 5 of the Children Act 1989, a local authority may assist a person to obtain accommodation if that person voluntarily leaves premises where a child is suffering or is likely to suffer ill treatment from him or her. This provision may assist in making arrangements to safeguard a child without having to disrupt the child’s living arrangements.
In a case where a child is suffering or is likely to suffer Significant Harm and alternative arrangements need to be made for the child’s care, the local authority has a discretion to decide whether the provision of accommodation for the child, by agreement with the parents under Section 20 of the Children Act 1989, is sufficient to safeguard the welfare of the child, or whether an application for a Care or Supervision Order is necessary. The term “Accommodated Child” refers to a child for whom the local authority has provided accommodation under Section 20. Work with parents to achieve an initial agreement regarding accommodation of the child by the local authority will usually ensure that the ongoing plan for the child can be operated in partnership with the parents. However, where, for example, a parent is unwilling to co-operate at the outset, or becomes uncooperative or inconsistent in attitude or commitment to the child, the nature of the arrangement should be reassessed, and the need for Care Proceedings or even emergency protective action should always be considered.

4. Children In Need

Under Section 17(10) of the Children Act 1989, a child is in “need” if:

He/she is unlikely to achieve or maintain, or have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him/her of services by a local authority;
His/her health or development is likely to be significantly impaired, or further impaired, without the provision for him/her of such services; or
He/she is disabled.

5. The Local Authority's Duty to Investigate

A local authority is under a duty to investigate in the following circumstances:

When a Court in family proceedings directs that a local authority investigate a child’s circumstances [Section 37 (1)]
Where the local authority is informed that a child who lives, or is found, in its area is the subject of Emergency Protection Order (granted to a person other than the local authority) or is in Police Protection [Section 47 (1) (a)] or has contravened a ban imposed by a curfew notice made under the Crime and Disorder Act 1998. [Under that Act, there is provision for local curfew schemes which allow local authorities to ban children of specified ages (under 10) from being in a public place during specified hours]

Where a child has been taken into Police Protection, the local authority’s enquiries have to consider whether it would be in the child’s best interests for the local authority to ask for an application to be made by the Police for an Emergency Protection Order [Sections 46 (7) and 47 (3) (c)]. However, in practice if this is necessary it is action that will ordinarily be instigated by the Local Authority.
Where a local authority is informed, or has cause to suspect, that a child living in their area has suffered Significant Harm or is likely to suffer such harm [Section 47 (1) (b)]

In such circumstances, the local authority’s duty is to take such steps as are reasonably practicable (unless they are satisfied that they already have sufficient information about the child) to obtain access to the child or to ensure that access to him or her is obtained on their behalf by a person authorised by them for this purpose. These enquiries must be made with a view to enabling the local authority to determine what action, if any, to take with respect to the child [Section 47 (4)]

Also where a local authority has obtained an Emergency Protection Order under Section 44 with respect to a child, the authority must make (or cause to be made) such enquiries as they consider necessary to enable them to decide what action they should take to safeguard or promote the child’s welfare [Section 47 (2)].

These enquiries must be directed particularly towards establishing whether the local authority should make an application to the Court or exercise any of their other powers under the Children Act with respect to the child [Section 47 (3) (a)].

In Oxfordshire enquiries under Section 47 of the Children Act 1989 are referred to as “Child Protection Assessments”.

NB Where during the course of an investigation a local authority reaches the view that a child is not safe remaining in his or her parents' care, and alternative arrangements for the child cannot be made with the parents' Consent, action cannot be made to remove the child from danger without an appropriate application being made to the Court to achieve this or the child being placed in Police Protection. See Section 12, Police Protection.

6. The Duties of Other Agencies and Persons to Co-operate

Where a local authority conducts Child Protection Assessments, it is the duty of other agencies listed below to assist them in those assessments if called upon by the authority to do so (S47 (9)) unless it is unreasonable in the circumstances to do so.

The agencies concerned are:

Any local authority
Any local education authority
Any local housing authority
Any health authority
Other persons authorised by the Secretary of State for the purposes of this Section.

7. Child Assessment Order (Section 43 Children Act 1989)

If during the process of an investigation the local authority believes that a child may be suffering or likely to suffer Significant Harm but there appears to be insufficient evidence to make a final decision on this, then a Child Assessment Order may be appropriate in order to assist the local authority in determining that question.

The Court may a Child Assessment Order if it is satisfied that:

the applicant has reasonable cause to suspect the child is suffering or likely to suffer Significant Harm;
an assessment of the child’s health or development or the way in which the child has been treated is required in order to determine whether or not the child is suffering or likely to suffer harm; and
it is unlikely that such an assessment will be made or be satisfactory in the absence of an order.

The Order must specify the date by which the assessment is to begin and lasts no longer than seven days. An Order cannot authorise the assessment of a child of sufficient age and understanding who refuses to undergo it. Appropriate directions may be given by the Court and apart from these directions, Parental Responsibility is not affected.

An application must be made on notice to the parents and child, and to any other person with the care of the child or in whose favour a Contact Order has been made. Such orders are not therefore designed to address emergency situations. However, whilst the Court is considering a Child Assessment Order, it may in fact grant an Emergency Protection Order if satisfied that the grounds exist. The outcome of the assessment conducted under the Order will usually be considered at a Child Protection Conference.

8. Exclusion Orders

In private law proceedings parents can seek to have a person excluded from the family home in a number of ways, for example, by means of injunction if there has been domestic violence justifying such exclusion. There is a range of powers, under the Family Law Act 1996, which might therefore be used to have a person removed from the home in circumstances when the child(ren) in the family might otherwise have to be removed.

A local authority can apply to have a person excluded from a house and/or a defined area around a home in which a child(ren) lives if:

an Interim Care Order or Emergency Protection Order has been made;
there are reasonable grounds to believe that, if the person leaves the household or is prevented from going to the household, the child(ren) will cease to suffer Significant Harm;
another person in the household is able to give the child(ren) the care that is reasonable to expect a parent to give;
that person consents to the exclusion.

This can be useful during the course of Care Proceedings to establish a safe environment for a child by removing the person responsible for the child’s suffering rather than removing the child. However, it must be noted that such orders are limited: they can last only as long as Interim Care Orders continue and when the Care Proceedings are finally concluded they cease to be available. If an exclusion order continues to be required thereafter a parent would once again need to rely on the range of powers referred to above.

9. Emergency Protection Order - (Section 44 Children Act 1999)

Any person may apply for an Emergency Protection Order in relation to the child which can be made if the court is satisfied that there is reasonable cause to believe that a child is likely to suffer Significant Harm if not moved to safe accommodation or remain where s/he is.

A local authority may apply for an Emergency Protection Order if:

enquiries are being made with respect to the child and there is reasonable cause to suspect that the child is suffering or likely to suffer Significant Harm; and
those enquiries are being frustrated by access to the child being unreasonably refused; and
access to the child is required as a matter of urgency.

The Court has laid down strict guidelines in relation to applications for Emergency Protection Orders which must also be taken into account to ensure that the basis for the immediate removal of a child is sufficiently compelling. These guidelines are:

evidence of imminent danger of harm;
risk of emotional harm , non-specific allegations of sexual harm or fabricated illness will rarely justify an Emergency Protection Order if there is no accompanying risk of direct and immediate physical harm;
evidence must be full, detailed, precise and compelling and first hand if at all possible;
an Emergency Protection Order should only be made if there is exceptional justification and extraordinarily compelling reasons. It must be necessary and proportionate to protect the child;
if an assessment is required a Child Assessment Order may suffice;
must be made for shortest possible time;
notice must be given save in wholly exceptional cases;
child should be returned as soon as it is safe;
contact for the child whilst the order lasts must be driven by child’s needs, not resources.

An Emergency Protection Order, if granted to the local authority, gives it Parental Responsibility which is in addition to and has to be shared with the parents’ subsisting Parental Responsibility.

Directions may also be made in relation to medical examinations or assessments and what contact the child should have with parents and other persons. An order to remove the child will only be made if necessary, and such a child should be returned home when it is safe to do so.

The initial Emergency Protection Order can last a maximum of eight days but may be challenged by the parents if they were not present at the original Court hearing. An extension to the original order can be made for a further 7 days if necessary to continue to protect the child(ren).

A court granting an Emergency Protection Order may also grant a warrant of entry, authorising a constable to assist the applicant in exercising the emergency protection powers and such a constable may use reasonable force if necessary. A doctor, registered nurse or registered health visitor may accompany the constable if the constable so requires.

Where speed is essential to protect a child and a warrant would take too long to obtain, the Police can enter premises without a warrant to save life or limb under Section 17 (1)(e) of the Police and Criminal Evidence Act 1984

Children who are capable of giving Consent (if of sufficient understanding and maturity) cannot be medically examined or assessed without their consent.

If the Court is considering granting an Emergency Protection Order but does not have adequate information as to the child’s whereabouts it may order any person with such information to disclose it

Where the Court is satisfied that an Emergency Protection Order should be granted the Court may also include an exclusion requirement in the Order – see Section 8, Exclusion Orders.

Throughout the period of any Emergency Protection Order, parents should, as far as possible, be involved in discussion and planning for the child and at the very least should be kept fully aware of what action is being taken.

10. Recovery Orders (Section 50 Children Act 1989)

A Court may make a Recovery Order in respect of a child who is in care, or is the subject of an Emergency Protection Order, Care Order or Interim Care Order or in Police Protection (under Section 46), if there is reason to believe that he or she has been unlawfully taken away from the “responsible person”, has run away or is staying away from the “responsible person” or is Missing. A “responsible person” is any person who has care of the child by virtue of a Care Order, Emergency Protection Order or following Police removal.

The Order operates as a direction to produce a child or disclose his or her whereabouts, and authorises a Constable to enter specified premises and search for the child using reasonable force if necessary.

11. Power of Entry to Save Life or Limb

A Police Constable may enter and search any premises, without the need for a warrant, for the purposes of saving life or limb (Police and Criminal Evidence Act 1984, Section 17).

This is a general power and may be used to gain access to premises in which a child is in serious danger.

12. Police Protection (Section 46 Children Act 1989)

If a Police Constable has reasonable cause to believe that a child would otherwise be likely to suffer Significant Harm, he is authorised to remove that child to suitable accommodation and keep him there or alternatively to take such steps as are reasonable to prevent the child’s removal from suitable accommodation. No child may be kept in Police Protection for more than 72 hours.

The police are required to take steps as soon as practicable to inform the child (if capable of understanding) and parents of what is being done.

Whilst a child is being kept in Police Protection, the Police do not have Parental Responsibility for the child but should do what is reasonable to promote the child’s welfare. This includes allowing such contact with the child as, in the opinion of the Police, is both reasonable and in the child’s best interests. Once Police enquiries are complete, the child must be released from Police Protection unless there are still reasons to believe the child will suffer harm. In those circumstances, discussions should take place with the local authority with a view to applying for an Emergency Protection Order.

It is accepted by the Thames Valley Police and Oxfordshire Children, Young People and Families that Police Protection will only be utilised by the Police in exceptional circumstances and as a last resort. For example, it would be appropriate where it is necessary for the Police to use their emergency powers to protect a child from immediate danger i.e. where the urgency is so great that the child’s safety would be compromised by the delay involved in an application for an Emergency Protection Order.

NB It is important to note that a child cannot be removed from his or her parents' care without the Consent of the parents without such action being taken. This includes a new born baby in the maternity hospital.

Under normal circumstances, any removal or other action required to protect a child – whether on a voluntary or compulsory basis – will be achieved by the Children, Young People and Families through Consent, Court action or Police Protection.

13. Care Orders

A Care Order is an Order made by the Court following Care Proceedings under Section 31 of the Children Act 1989.

14. Care Proceedings

This section should be read in conjunction with Section 2, The Public Law Outline and Revised Children Act 1989 Guidance Relating to Court Orders.

A Care Order under Section 31 of the Children Act 1989 may only be made by a Court if is satisfied:-

that the child concerned is suffering or is likely to suffer Significant Harm; and
that the harm or likelihood of harm is attributable to:

the care given to the child or likely to 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

Essentially the harm or likelihood of harm must be attributable to a lack of reasonable parental care. This ground is commonly referred to as the Threshold Criteria.

An Interim Care Order can be made at any stage in the proceedings if the Court is satisfied that reasonable grounds exist for believing that the above criteria are satisfied. The duration is for up to 8 weeks on the first occasion and after that, for periods of up to 28 days. There is no limit to the number of Interim Care Orders that can be made but the timetable for the proceedings will impose a framework to minimise delay and to provide for a final decision to be made within the requirements of the Protocol.

Under a Care Order or an Interim Care Order the Local Authority specified in the Order acquires Parental Responsibility for the child, to be shared with the parents and any others who retain Parental Responsibility, for example those who hold a Special Guardianship Order. The local authority has the power to determine the extent to which a parent or Special Guardian may exercise Parental Responsibility.

NB The Court has recently ruled that, where the local authority is considering the removal of a child from his or her parents' care under the terms of an Interim Care Order, there must bean imminent risk of really serious harm to justify this.

All children who are the subject of Care Orders have to have a Care Plan. When making a Care Order, the Court has to approve the Care Plan for the child.

The local authority has a duty to arrange reasonable contact between children and parents whilst Interim or full Care Orders exist. A specific application to the Court must be made if contact is terminated. Emergency suspension of contact is possible but only up to 7 days.

A Care Order lasts until the child is 18 years old unless discharged earlier.

A Care Order cannot be made on a child who is over 17 (16 if married).

15. Supervision Orders

A Supervision Order is an order made by the Court under Section 31 of the Children Act 1989. The Court can only make a Supervision Order if it is satisfied that the Threshold Criteria are met (see Section 14, Care Proceedings).

Under a Supervision Order, the local authority specified in the order has a duty to advise, assist and befriend the child and the family.

A Supervision Order does not confer Parental Responsibility on the local authority.

A Supervision Order can be made for up to one year initially and can be extended for a total of up to 3 years by a Court.

An Interim Supervision Order can be made for up to eight weeks on the first occasion and after that, for period of up to 28 days. There is no limit to the number of Interim Supervision Orders that can be made but, as with Care Orders, will be subject to a legal time-frame providing for a final decision to be made without undue delay.

16. Contact Orders

A Contact Order is made by the Court, usually under Section 8 of the Children Act 1989 requiring the person with whom a child lives to allow the child to have contact with the person named in that order.

A Contact Order can be made in relation to a child who is the subject of a Care Order (under Section 34 of the Children Act 1989) or in relation to a child who is the subject of a Placement Order (under Section 26 of the Adoption and Children Act 2002).

17. Residence Orders

A Residence Order is an order made by the Court under Section 8 of the Children Act 1989 which specifies with whom a child should live.

A person in whose favour a Residence Order is made will acquire Parental Responsibility for the child which is shared with the parents.

A Residence Order will normally last until a child is 16 years old although the Court may direct that the Order last until the child is 18, for example where the child is disabled, or where the child was previously Looked After by the local authority and his or her foster carers have applied for the Order with a view to providing permanent care for him or her.

A Residence Order will automatically be discharged on the making of a Care Order.

A Residence Order cannot be applied for by or made in favour of a local authority.

18. Prohibited Steps Order

A Prohibited Steps Order is an Order made by the Court under Section 8 of the Children Act 1989.

The Order specifies action that cannot be taken by a person in relation to a child without the Consent of the Court.

19. Specific Issues Order

A Specific Issues Order is an order made by the Court under Section 8 of the Children Act 1989.

The Order gives direction for the purposes of determining a specific question which has arisen in relation to the exercise of Parental Responsibility for a child, for example, where or how a child should be educated.

The section 8 orders (Residence, Contact, Prohibited Steps and Specific Issues Orders) can all be made of the Court’s own motion. The Threshold Criteria do not apply.

Any person may apply for a Section 8 Order but some (e.g. grandparents, foster carers) will require specific leave of the Court.

A local authority cannot apply for any Section 8 Order relating to a child who is subject to a Care Order. It may apply for a Specific Issues Order or a Prohibited Steps Order for other children (e.g. for a child Accommodated under section 20 who needs a passport but whose parent refuses to give Consent).

No Section 8 Order can coexist with a Care Order. Whilst a Care Order is in force the only section 8 order that any person can apply for is a Residence Order and, if granted, the Care Order will automatically be discharged.

20. Special Guardianship Orders

A Special Guardianship Order is an order made by the Court under Section 14 of the Children Act 1989, as amended by the Adoption and Children Act 2002. The Order has only become available since 30 December 2005 and offers a new option to provide permanence for children who are unable to live with their parents but for whom adoption is not the right option, for example because of their age and existing attachment to their birth parents. It may therefore be appropriate where a child lives with relatives or friends of the family, or with foster carers who wish to offer a permanent home to the child.

A person in whose favour a Special Guardianship Order is made will become the child’s Special Guardian and acquire Parental Responsibility for the child, which he or she can exercise on day to day matters exclusively and without the need to consult the parents on every issue.

Parents must still be consulted however about the child’s adoption, change of name and removal from the country for more than 3 months.

A Special Guardianship Order will last until a child is 18 years old. It will not automatically be discharged on the making of a Care Order, although the exercise of Parental Responsibility will be restricted as a result. A pre-existing Care Order will be discharged on the making of a Special Guardianship Order.

21. Family Assistance Orders

During any family proceedings the Court, with the Consent of all those to be named in the Order (local authority, parents), may decide that a Family Assistance Order would be of help to a family. The effect of granting this Order is that either a Probation officer, CAFCASS officer or the local authority would be asked to advise, assist and befriend the child named in the order. Such an Order can now last for a period of 12 months and might be used to negotiate or supervise access during a difficult marital breakdown.

22. Wards of Court

A child who is a ward of Court is under the jurisdiction of the High Court. No important decision can be taken regarding such a child without the High Court’s Consent. This includes medical assessments and interviews. A local authority cannot apply to make a child a Ward of Court. In certain circumstances, it can apply to the Court for an Order to protect a child when no other Order under the Children Act 1989 would have the same effect e.g. an injunction to prevent the publication of information in the media concerning the child. It can only do so with the leave of the Court and where there is a likelihood of Significant Harm to the child.

23. Placement Order

A Placement Order, made under Section 21 of the Adoption and Children Act 2002, gives authority to a local authority to place a child with prospective adopters. It can only be made in relation to a child who is the subject of a Care Order or where the Threshold Criteria for a Care Order are satisfied, or where there is no parent or guardian, and has the effect of suspending a Care Order. If the Placement Order is subsequently revoked, the Care Order is reinstated.

The Placement Order continues until it is revoked or until an Adoption Order is made or until the child is 18 or marries.

Only a local authority can apply for a Placement Order and such an Order is required before a child can be placed for adoption with prospective adoptive parents unless Parental Consent has been given to the placement.

Prospective adopters will acquire Parental Responsibility for the child as soon as the child is placed with them, to be shared with the birth parents and the adoption agency making the placement, until an Adoption Order is made when Parental Responsibility will rest solely with the adoptive parents.

24. Child Curfew Order

Under the Crime and Disorder Act 1998, there is provision for local curfew schemes which allow local authorities to make Child Curfew Orders to ban children of specified ages (under 10) from being in a public place during specified hours).

25. Criminal Proceedings

Criminal proceedings can still be brought for a wide range of misconduct resulting in the abuse of a child. The offence of cruelty, ill treatment or wilful Neglect of a child under 16 is set out in Section 1 of the Children and Young Persons Act 1933. This offence includes failure to provide adequate food, clothing or medical attention. There are other more specific offences in the 1933 Act, such as allowing a child under 12 to be in a room with an unguarded heating appliance if this results in serious injury to the child. More detail about managing the risks posed by persons cautioned or convicted of an offence against a child can be found in the MAPPA Procedure

A child under 10 is below the age of criminal responsibility.

26. Interviewing Child Witnesses

The Government publication “Achieving Best Evidence in Criminal Proceedings”, gives guidance to those conducting video recorded interviews with child witnesses where it is intended that the interview is used in Court proceedings. Whilst the focus of the document is on criminal proceedings, it is Oxfordshire’s practice to follow the guidance in joint investigations between the Police and Children, Young People and Families, in order to avoid the unnecessary re-interviewing of a child.

The Guidance gives general advice on when, where and how to make a video recording which is intended to be used in criminal (and civil) proceedings, and sets out the legal conditions which must be satisfied before a Court can accept a video recording of an interview with a child witness. It gives advice on preparation for, and conduct during, the interview and details the matters which need to be dealt with once the video recording has been made, including arrangements for the proper storage, custody and disposal of tapes.

Although it is not compulsory to adopt the Guidance, it should be applied, in the interest of good practice in all cases. Non-compliance may result in the video interview being ruled inadmissible as evidence in the criminal process or mean that little weight is attached to its credibility in civil proceedings.

27. Parental Responsibility

The meaning of Parental Responsibility

Section 3 of the Children Act defines Parental Responsibility as:

“.... all the rights, duties, powers, responsibilities and authority which by law a parent has in relation to the child.....”

The exercise of Parental Responsibility is left largely to the discretion of the adults involved, subject to two limitations. Firstly, the criminal law imposes Minimum Standards of care and the civil law provides remedies for the protection of children’s welfare. Secondly, Parental Responsibility itself diminishes as children acquire sufficient understanding to make their own decisions.

A person other than a parent can acquire Parental Responsibility through a Court Order, for example a Residence Order or a Special Guardianship Order. The Local Authority can acquire Parental Responsibility through an Emergency Protection Order, Interim Care Order, Full Care Order and Placement Order. The exercise by natural parents of their Parental Responsibility will be limited by such Court orders. A person with Parental Responsibility is not entitled to act incompatibly with a Court order. Parents, however, do not lose their Parental Responsibility unless an Adoption Order is made.

28. Who May have Parental Responsibility

In relation to married parents, all mothers and fathers automatically have Parental Responsibility.
In relation to unmarried parents, mothers automatically have Parental Responsibility.
The position in relation to unmarried fathers changed on 1 December 2003. Up to then, if the father was not married to the mother, he could only acquire Parental Responsibility by a formal agreement with the mother in a prescribed form or by a Court Order. However the change is that an unmarried father acquires Parental Responsibility if he registers the birth jointly with the mother, and the registration takes place on or after 1 December 2003. This is not retrospective and therefore an unmarried father whose name appears on the birth certificate where registration took place before 1 December 2003 does not have Parental Responsibility by virtue of that registration.
Others have Parental Responsibility if orders have been made granting custody or care or control of a child to them prior to the Children Act 1989, or if they have been appointed guardians on the death of the parents or if they have been granted Parental Responsibility through an Order made under the Children Act 1989. Parental Responsibility will last as long as the Orders remain in existence.
Under the Children Act 1989, Parental Responsibility will be acquired through a Residence Order, Special Guardianship Order, Parental Responsibility Order (to an unmarried father or stepfather), Care Order, Interim Care Order or Emergency Protection Order.
On the death of all those with Parental Responsibility a person appointed as guardian of the child whether by a Court or in a will, acquires Parental Responsibility.
Step-parents and civil partners may now obtain Parental Responsibility by Court Order or agreement for their partner’s children.
Prospective adopters also acquire Parental Responsibility upon the placement of a child with them under a Placement Order or where parental Consent to the adoptive placement has been formally given and witnessed; however, the extent to which they may exercise their Parental Responsibility prior to an Adoption Order being made can be determined by the local authority and is best done in the form of a written agreement.

29. Possible Impact on Practice

Section 2 (6) of the Children Act 1989 provides that any person with Parental Responsibility does not cease to have that responsibility solely because some other person (e.g. a local authority) subsequently acquires it. The implications of this are great. For example:

The local authority has a duty to ascertain and consider the wishes and feelings of those with Parental Responsibility before making any decision with respect to any child it is “looking after” [Section 22(4)]. Note: Looked After children are all children who are provided with any form of accommodation (whether on a voluntary or statutory basis) by the local authority for 24 hours or more.
When conducting any review on a Looked After Child, the local authority must seek the views of any person with Parental Responsibility in relation to any particular matter which is being considered [Section 26(1)]. (This does not apply where the child is placed for adoption when the local authority must consult the prospective adopters).
When providing Voluntary Accommodation in agreement with parents, the local authority must ensure that it identifies those with Parental Responsibility for the children Accommodated, so that it can be clear about who has the right to remove and provide or arrange alternative accommodation elsewhere [Section 20(7)]

The local authority has a duty to promote contact between Looked After children and anyone with Parental Responsibility until the child is the subject of a Placement Order or adopted.

Where a child is subject to an Emergency Protection Order, Interim Care Order or Care Order, it can only refuse or end such contact with the Court’s authority, other than in an emergency when it can be suspended for up to 7 days.

The birth parent no longer has Parental Responsibility after the child is adopted.

Apart from the duties above which relate to Accommodated or Looked After children, the local authority will have to consider the implications of who has Parental Responsibility in regard to children about whom they are considering that accommodation or “care” might be appropriate e.g.:

when considering whether or not to provide accommodation under Section 20, the local authority must ensure no other person with Parental Responsibility is in a position to help/provide an alternative;
the local authority must properly consider (and prove to the Court that it has done so) all the alternatives before applying for a Care Order, if that ever becomes necessary. Due consideration should also be given to alternatives prior to making an application for an Emergency Protection Order if reasonably practicable and the safety of the child is not jeopardised.

End