There are numerous pieces of legislation, both civil and criminal that deal with the protection of children. This article looks at the various court orders that can assist us in our safeguarding role. For many safeguarding professionals, orders are part and parcel of their daily business, they will be familiar with much of this legislation. This guide is not for those professionals. It is for the many practitioners who have safeguarding responsibilities, but do not routinely deal with care orders. It is a quick and hopefully ‘easy on the eye’ practical guide. We hope you find it of some value.
A care order under Section 31 Children’s Act 1989, places a child under the care of the Local Authority (LA). A child will become a looked after child (LAC) and ‘in care’. This gives the local authority ‘Parental Responsibility’ (PR) for the child. This does not mean that the parents of the child concerned lose their parental responsibility. Whilst they still retain PR, the authority has a responsibility to ensure the child is adequately safeguarded. They can overrule the parent in the best interests of the child and therefore govern (within reason) the extent to which the parents can exercise their parental responsibility.
Some salient points of a Care Order are:
- orders are sought by the LA but in exceptional circumstances the NSPCC can bring proceedings
- the court may make several interim care orders before granting a full care order. This is so that further assessments and enquiries can be made. Interim orders still give the local authority parental responsibility
- the local authority can decide where the child lives and with whom. There is a duty on the authority to allow ‘reasonable contact’ between a child in care and their parent. This should be agreed between the authority and the parents, but where there are disputes then either party can apply to the court for a ruling to define contact. If the authority wish to prevent contact for a period longer than 7 days, they need the permission of the court. They also require the court’s authority if they believe there should be no contact between child and parent/ guardian. This can be in the original order or if circumstances change, then a further application should be made.
- for most orders the court can make directions around contact, assessments or medical and psychiatric examinations. However, if the child is of sufficient understanding to make an informed decision he/she can refuse to be examined or assessed.
- although rare, a child under a care order can live at home and be cared for by a parent/guardian.
- the care order should be subject to regular reviews and the local authority have a duty to look at whether the child’s circumstances have improved/changed, and whether the order is still required.
- each child under an order should have an individual care plan.
- a care order ends when the child becomes 18, unless it is brought to a conclusion earlier.
- where the care order no longer exists, in some cases a local authority can continue to have a ‘duty’ towards a child (who was a LAC) until they are 23-years old.
- no care or supervision order may be made with respect to a child who has reached the age of 17 (or 16 if the child is married).
The court will have to be satisfied that there is a belief:
- that the child is suffering, or is likely to suffer significant harm
- and that the harm is attributable to the care being given to the child not being what it would be reasonable to expect a parent to give;
- or the child is beyond parental control.
Significant harm means:
Physical – physical abuse is deliberately hurting a child, causing injuries such as bruises, broken bones, burns or cuts. These injuries may not be inflicted on areas of the child’s body where they are readily visible.
Emotional – this is the ongoing emotional maltreatment or emotional neglect of a child. It’s sometimes called psychological abuse and can seriously damage a child’s emotional health and development.
Neglect – neglect can best be described as an ongoing failure to meet the child’s needs. The child may be left hungry or dirty. They may not have adequate clothing, supervision, medical or health care. A child may be put into dangerous situations or not adequately protected from harm.
Sexual Abuse – when someone is told, asked or forced to take part in sexual activities. This includes making a child do sexual acts either to themselves or with other people, making them watch sexual behaviour or involving them in the making of films, videos, DVD’s or taking photographs or videos on mobile phones that involve sexual activity.
Section 44 Children Act 1989
Where a child is in immediate danger, this is a short-term order to ensure the child’s safety. It lasts a maximum of 8 days but can be extended for a further 7 days on application. The order grants the applicant parental responsibility, but only allows them to take such action which is reasonably required to safeguard the welfare of the child. This can include accommodating the child and preventing them from returning to their parent’s care, or if it’s safe to do so, allow them to remain where they are (prevent removal to an unsafe environment). The following people can apply for an EPO:
- authorised person on behalf of the LA
- authorised person from the NSPCC
- authorised by the Secretary of State to bring care proceedings
- designated police officer
The applicant must show that a child would suffer significant harm if:
- he/she is not removed to accommodation provided by the local authority; or
- does not remain in the place where he/she is currently being accommodated e.g. in hospital;
- in the case of a local authority, their enquiries under Section 47 of the Children Act 1989 are being frustrated and access to the child is required urgently.
The applicant should give notice to the parent/guardian of their intention to apply for an EPO. This will give the parent an opportunity to represent or be represented at court. However, notifying the parent will only be appropriate where the applicant can satisfy themselves that the child will be safe in the interim. In exceptional circumstances where there are real concerns that the child will be harmed then an application can be made without notice.
At the time of making an EPO the court can also make an exclusion requirement against a person whom they believe may be a danger to the child. This can exclude a person from living in the same house by directing that the person vacate the premises, prevent the person from entering the home or exclude then from a defined area. There must be reasonable cause to believe that if the person is excluded from the home, the child:
- will cease to suffer or cease to be likely to suffer significant harm and;
- another person lives in the home and is able and willing to give the child the care, which it would be reasonable to expect a parent to give and that person consents to the exclusion.
A court can issue a warrant authorising a constable to assist any person attempting to exercise powers under an EPO who has been or is likely to be prevented entry/access to the child. A power of arrest may also be attached to an exclusion order.
Section 38 Children Act 1989
An ICO is the first step after care proceedings have been initiated. The order can initially be granted for a period of up to 8 weeks, but an application can be made to renew the order every 4 weeks thereafter. There is no limit on the number of ICO’s that can be made. The local authority should complete an interim care plan which will include where the child will reside until a full hearing is held. Like the EPO the court can also issue an Exclusion Order at the time they grant an ICO. Applying for an ICO carries the same threshold as a full care order.
Section 31 Children Act 1989
A Supervision Order means that a child will remain where they live, but the local authority will have supervision of the child’s care. Social Workers and other relevant parties will be granted access to enter the property to assess the level of care being given by the parent/guardian. A Supervision Order lasts for 1 year, unless the authority feels that the level of care provided to the child by the parent isn’t sufficient, in which case they may apply to the court for an extension. This can be for a further 2 years but no longer. However, the LA will have to show good reason for making an application to extend.
The order does not give the local authority parental responsibility. Instead it places a duty on the ‘supervisor’ to advise, assist and befriend the child. It is usual for the authority to agree a plan with the parent so that both parties are clear about what is expected from them, and what actions are required. The order may also require the supervised child to comply with directions given by the supervisor. This could be directions such as attending meetings with the Social Worker, live at a specified location and take part in specified activities.
This order only works where there is a cordial arrangement between the local authority and parent. However, relationships can often deteriorate quickly. What happens when a parent doesn’t enter into the agreed contract and totally ignores the order of the court? The court has no power to impose conditions on a supervision order. Therefore the risk should be reviewed and if the threshold is met, then the option to seek an ICO or if applicable an EPO, should be considered.
A PSO is an order which prevents anyone from carry out a certain action, regardless of whether they have parental responsibility. Although the directions can be made against anyone, the application must relate in part to an aspect of parental responsibility. Parents, guardians, other people with PR, or persons who are named in a child arrangements order (as a person with whom the child is to live) can apply to the court without requiring the court’s permission to do so. Anyone else submitting an application will require the court’s permission.
The order’s primary aim is to deal with specific problems that have arisen between two parties over the child’s welfare. The order can therefore provide specific directions such as preventing a parent taking a child out of the country, preventing the removal and relocation of a child from their home, or preventing a parent from allowing the child to have contact with a specific person.
How does this affect professionals? – the court cannot make a prohibited steps order while the child is in the care of the local authority. So, while the legislation was never intended for safeguarding agencies, professionals should be alert to the existence of an order when working or engaging with a child. This will normally be where parents or others are engaged in a dispute over custody of the child. A PSO can be for a specified length of time or last until the child reaches 16 years of age, unless the court is satisfied that there are exceptional circumstances as to why it should be extended. Then it may be extended until a child reaches 18 years.
- whether the child should receive medical treatment
- the type of schooling they should have
- the religion the child should follow
- whether the parent with whom the child resides can take the child to live abroad
Section 50 Children’s Act 1989
Recovery Orders deal with the recovery of a child who is under a Care Order (Interim or Full), an Emergency Protection Order (EPO) or who is under Police Protection. A court can issue a Recovery Order where it there is reason to believe that a child:
- has been unlawfully taken away or is being unlawfully kept away from the responsible person
- has run away or is staying away from the responsible person; or
- is missing
The order directs any person to produce the child on request to any authorised person, if they are in a position to do so. It also authorises the removal of the child by any authorised person and requires any person who has information as to the child’s whereabouts to disclose that information, if asked to do so, by a constable or an officer of the court. A constable can to enter any premises specified in the order and search for the child using reasonable force if necessary. It is an offence to intentionally obstruct an authorised person exercising the power of an order.
A recovery order can be made on application by:
- any person who has parental responsibility for the child by virtue of a Care Order or EPO;
- the designated officer where the child is in police protection
A word on recovery orders – an order can specify premises that can be entered and searched by a constable, if the court is satisfied that there are reasonable grounds for believing the child to be on the named premises. This is a very handy tool for police when trying to retrieve a missing child and where police have previously been refused entry. Unfortunately, we have seen many examples of badly prepared orders, where the addresses named in the order are out of date, not relevant and in some cases completely wrong or simply do not exist. This has come about because there has been a lack of communication between police and social care in the preparation stage of the order. Names and addresses of people that the child stopped associating with some time ago or sometimes false associates supplied by the child, have then been put before the court. One order we were provided with had 5 named addresses, 4 of which were wrong. The fifth address belonged to the father of the child who was actively looking for his missing daughter and had done everything to assist the police investigation. This led to a refusal by us to execute the order. We can’t stress enough the importance of a strategy meeting between the various agencies, where the application and details of the recovery order should be agreed upon, with both lead agencies bringing their most current intelligence to the table.
There is no time limit on a recovery order, but we have often debated whether it is ethical or lawful to attend an address on more than one occasion to search for a child under the order. Unlike a search warrant for criminal offences which stipulates police may enter once and within a certain period, there is no such direction on a recovery order (none that we have seen anyway). Is it reasonable to continually return to the same address under the power of an order without the occupier being able to have some right of appeal? If a child is clearly being harboured in the address, but at the time isn’t there, then may it be reasonable to return and search multiple times?
A recovery order is not available in respect of accommodated only children. Your alternative is to apply for an EPO if there are grounds and if appropriate ask the court for a warrant under Section 48(9) of the Children Act 1989 if appropriate. S49 states that if a court is satisfied that a person attempting to exercise powers under an EPO has been prevented from doing so by being refused entry to the premises concerned or access to the child concerned (or likely to be), then it may issue a warrant authorising any constable to assist the person attempting to exercise the powers of the EPO.
A CAO is an order directing an assessment of the child’s welfare, health and development to establish whether the child in question is suffering or likely to suffer any harm in the future. The applicant, either the local authority or other authorised person must have reasonable cause to suspect that the child is currently suffering or likely to suffer significant harm. The court will not grant a CAO if they are satisfied that there are reasonable grounds for making an Emergency Protection Order instead. In those circumstances the court can treat the CAO application as an application for an EPO. What this means in real terms is that if your information suggests that the child is in immediate danger then the court will question why an EPO isn’t being considered and therefore the court has a duty to consider an EPO. A CAO is more appropriate where you believe the harm and neglect is long term and progressive rather than a degree of immediacy to the harm.
How does it work? – once a child assessment order has been granted by the courts, it becomes the duty of the person (parent/guardian) to produce the child to the person named in the order. If the child who is subject to the order has sufficient understanding to make an appropriate informed decision, they may refuse to submit to a medical or psychiatric examination or any other assessment. A CAO lasts for no longer than 7 days from the date specified in the order. There can be no extension and no further application can be made within 6 months of the disposal of the previous order without seeking leave of the court. Your time is limited and planning is the key.
Section 25 Children Act 1989
This involves a restriction of liberty and should only be used in the most problematic and complex cases. This order allows a local authority to place a child in secure accommodation. The court can make a secure accommodation order where:
- a young person has a history of absconding, is likely to abscond from any other type of accommodation and if they abscond is likely to suffer significant harm; or
- if the young person is not kept in secure accommodation he is likely to injure himself or other people.
A secure accommodation order can only be made if the child is subject to a Care Order. If a child is under 13 the permission of the Secretary of State is required.
On the first application, the court can make an order for up to 3 months, thereafter for periods of up to 6 months following further applications.
Not commonly known - The court's authority is not always required for the first 72 hours that a child is placed in secure accommodation. This means a Director of Children’s Social Services can place a child into secure accommodation without the leave of the court. This is an emergency power. However, if the local authority believes that the child needs to be in secure accommodation for longer, an application must be made to the court.
Some other points of note for secure orders:
- the court cannot make the order unless the child is legally represented
- if during the course of the order the child no longer meets the criteria, the local authority must remove the child from secure accommodation
- arrangements need to be put in place so that the child can have contact with their parent(s)
- if the authority feels that contact with the parent(s) is not in the child’s interest they must seek a court order to prevent contact
- the child must receive education whilst in secure accommodation
Section 8 Children Act 1989
A Child Arrangement Order is where the court decide key issues in a child’s life:
- with whom the children will live and when (residence)
- with whom and when they will spend time or have contact with someone (contact)
Child Arrangement Orders replaced Residence and Contact orders from 22nd April 2014.
How does this impact on professionals? – where a CAO is in force, the person with whom a child should live can take the child outside England and Wales for up to a month at a time, without needing the permission of any other persons who have parental responsibility or the court. This means that if a parent for example wanted to take a child to their country of origin, they could do so without notifying the other parent and this may well cause issues.
We have dealt with cases where the parent left behind has reported their child missing, genuinely mistaken in believing that the child and other parent are missing. However, on other occasions we have dealt with cases where the other parents does this purely to make mischief e.g. an attempt to get the other parent and child detained at an airport. If a parent does take a child out of the UK, then they are not missing. However, this order can also assist a parent who intends to relocate to another country with the intention of not returning. An order effectively gives them a month’s grace to disappear. Please also see our section - Parental Child Abduction
Time and contact - the amount of time a parent can spend with their child will depend on the child’s age and how feasible it is to arrange contact, i.e. how far apart the parents live, the child’s schooling and other activities outside of school. In a modern techno world, the court can order contact via telephone, video phone (Facetime/Skype etc.), or even by way of written reports provided to the other parent.
The court can also order that contact be supervised by a third party or takes place at a specified place e.g. a contact centre. They are unlikely to force a teenager over 14 to spend time with the other parent against the child’s wishes.
Various parties can apply for a CAO including the local authority.