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Published: Wed, 07 Mar 2018
These Family Law pages were originally prepared by the Law Department at St. Brendan’s Sixth Form College. They are no longer being updated and no responsibility is accepted for them by St. Brendan’s College or Parallelewelten.net
During the first half of the twentieth century the conventional wisdom was that parents knew best, and only in the most extreme cases would parents or society at large tolerate any interference in their treatment of their children. An informed estimate in the mid-seventies suggested that as many as 700 children a year actually died at their parents’ hands, however, and several high-profile cases led to a re-assessment of the policy. The most notorious case was probably that of Maria Colwell, a Sussex 7-year-old beaten to death by her stepfather in 1973. His conviction for murder was subsequently reduced to manslaughter and his sentence to eight years’ imprisonment, but a formal enquiry led by Thomas Field-Fisher QC criticised the social workers (and the NSPCC) for poor communications and other systems failures. The Secretary of State then reminded local authorities that “the blood tie is not absolute”, and that there should be a thorough investigation of the parents (including step-parents) before a child in care is returned to the family.
More than ten years later, in 1985, 4-year-old Jasmin Lorrington (Jasmin Beckford) was battered to death by her father after months of imprisonment and appalling cruelty in her London home. Her father was sentenced to 10 years’ imprisonment for manslaughter and her mother to 18 months’ for cruelty and neglect, and an enquiry under Louis Blom-Cooper QC criticised almost everyone involved, from social workers to doctors, teachers and magistrates. The enquiry report emphasised that the child’s interests, not the parents’, must come first in care proceedings and similar matters, and stressed the importance of regular (monthly) health checks whenever an abused child is returned to his or her natural family.
Eventually these and several similar cases led to a much more interventionist approach, but the pendulum began to swing back when more than a hundred Cleveland children were removed from their homes over a four-month period in 1987 after two doctors had diagnosed sexual abuse within the family. An enquiry led by Butler-Sloss LJ subsequently cast doubt both on the accuracy of the diagnosis and on the appropriateness of the social workers’ response. A further push was given to the pendulum in 1992 by Lord Clyde’s report into the removal of nine children from their Orkney homes in dawn raids the previous year on suspicion of sex abuse during satanic rituals: the report said the social workers had failed to keep an open mind.
R v Kouao & Manning (2001) unreported
A couple DD were convicted of the murder of D1’s great-niece Anna Climbie, aged 8, who died from hypothermia and malnutrition after almost a year of serious physical abuse and neglect. During this period Anna had been examined by two consultant paediatricians and her case had been referred to a police child protection officer and social workers in three different boroughs, but through a combination of systems failures and human errors no effective action had been taken to protect her. (News reports 13/1/01)
The philosophy underlying present-day child care legislation is therefore that primary responsibility for the care and upbringing of children rests with their parents rather than with the state, even though the organs of the state have powers to intervene to prevent harm. The powers of the state are exercised mainly through local authorities, and through their social services departments in particular. In the heyday of interventionism a local authority could act more or less as it saw fit, making its own decisions as to what might be best for a child. But the virtual abolition of local authorities’ access to the wardship jurisdiction, the need to obtain a court order before taking any major step, the requirement to show a risk of “significant harm” when seeking a care or supervision order, and the “no order” presumption applied by the courts, combine to limit their powers quite considerably. The stress nowadays is on inter-agency cooperation, and social workers are expected to consult teachers, doctors, police and probation officers, and anyone else involved with a particular child before making decisions affecting that child’s future.
When the Children Act 1989 was first enacted, Lord Mackay LC set out in an article in the New Law Journal the importance of limiting the discretion of local authorities and other state agencies in matters concerning the upbringing of children. It should not be lawful for children to be removed from their families, he wrote, simply because the court thought the state would do a better job of bringing them up than their parents. If that were the case, the threat to poor families and to minority groups, whose views of what is good for a child might not coincide closely with those of the majority, would be all too apparent.
One possible response to some parents’ cruelty to their children lies in the field of criminal law: subject to a defence of lawful chastisement, a parent who physically abuses his or her children can be charged with the appropriate kind of assault, and because of the “duty relationship” between parent and child a parent can also be liable for injuries caused by neglect.
Children & Young Persons Act 1933 s.1(1)
If any person who has attained the age of sixteen years and has responsibility for any child or young person under that age, wilfully assaults, ill-treats, neglects, abandons or exposes him … in a manner likely to cause him unnecessary suffering or injury to health … that person … shall be liable … to imprisonment for any term not exceeding ten years …
R v Gibbins & Proctor (1918) 13 Cr App R 134, CCA
D1 and his mistress D2 were convicted of the murder of D1’s seven-year-old daughter Nelly; they had starved the child to death and the jury found this to have been their intention (though P, who hated Nelly, was clearly the moving force). The Court of Criminal Appeal upheld the conviction: where there is the duty to act, failure to do so can lead to liability even for murder if the necessary mens rea is present.
R v Derriviére (1969) 53 Cr App Rep 637, CA
A man F appealed unsuccessfully against a 6-month prison sentence for assaulting his son B12 and causing him actual bodily harm. He had struck B several times in the face with his fist, causing extensive bruising and some bleeding in the mouth, and had (perhaps) banged his head against a wall, as a punishment for deliberate disobedience. It was not F’s first offence: he had previously been convicted of a similar assault on his daughter, and a suspended sentence imposed on that occasion was also activated.
R v Mackie (1973) 57 Cr App R 453, CA
D threatened his three-year-old stepson with a severe thrashing for some minor misbehaviour. The boy tried to run away but fell downstairs, dislocated his neck, and died. D was charged with manslaughter, and his conviction was upheld by the Court of Appeal. Even though D was in loco parentis and could lawfully administer reasonable punishment, the jury had evidently found as a fact that the punishment he was threatening was excessive.
R v Harris & Harris (1993) unreported
Two parents were found guilty of the manslaughter of their daughter after refusing to allow doctors to treat her diabetes with insulin. Their duty to act arose from their relationship: parents have a duty to take proper care of their children, and if they fail to do so they can be criminally liable for the consequences (Times news report 29/10/93).
A v United Kingdom  2 FLR 959, Times 1/10/98, ECHR
An 8-year-old boy A, admittedly very badly behaved, was caned by his stepfather S on numerous occasions. S was acquitted of assault causing actual bodily harm, but the European Court of Human Rights said the caning (having reached the necessary level of severity) violated A’s right not to be subjected to inhuman or degrading punishment.
In May 1999 a Scottish father was convicted of assault after spanking his eight-year-old daughter when she refused to let the dentist treat her toothache. The spanking comprised six or seven smacks with his hand on the girl’s bare bottom, but was hard enough to leave bruises and was considered excessive by several witnesses. The sheriff said this went beyond the scope of the reasonable chastisement a parent is allowed to use; the father was admonished (a Scottish procedure with no equivalent in English law) and struck off the register of teachers. (Times news report 20/5/99)
This chapter is concerned more with the specific powers and duties of local authorities, acting on behalf of the state, in protecting children at risk of harm. These are set out comprehensively in Parts II, IV and V of the Children Act 1989, which reinforces the primary role of the child’s natural family and the state’s duty to support rather than take over the child’s upbringing. Even the order in which the Act deals with the various powers and duties carries this message.
Part III of the Act deals with the support which may or must be provided by local authorities to support “children in need” and their families. Under s.17, the local authority has an obligation to safeguard and promote the welfare of children within their area who are in need, and (so far as possible) to promote the upbringing of such children by their families, by providing a range of services appropriate to those children’s needs.
According to s.17(10), a child is “in need” if he is unlikely to achieve or maintain a reasonable standard of physical or mental health, or of physical, intellectual, social or behavioural development (or if his health or development would be impaired) without such services, or if he is disabled (that is, if he is blind, deaf or dumb or suffers from any mental disorder or is substantially and permanently handicapped by any illness, injury or congenital deformity).
The services provided might for example include the identification and assessment of children in need, preventing neglect and abuse, providing suitable accommodation for (potential) abusers to reduce the need for legal proceedings, reintegrating children with their families, providing home help services, providing assistance with travelling, and establishing “family centres” offering advice and guidance to children and parents and/or social and cultural activities. Most services are provided directly, but cash help can be given in some circumstances. A local authority must facilitate the provision of similar services by voluntary organisations such as Barnardos or the NSPCC, and may delegate some of its powers to such bodies.
Local authorities have a duty to provide day care from pre-school children in need, and after-school and holiday care and activities for all children in need, and may provide these services for other children as well. Any local authority that failed to provide such facilities could well find subsequent applications for care and supervision orders under Part IV of the Act (below) met with the assertion that the child’s welfare could be equally well protected by support under Part III.
Local authorities also have a responsibility for registering and monitoring child minders for children under 8. The definition initially covers anyone who looks after a child for reward for more than two hours in a day, whether in a house or elsewhere, but excludes the child’s relatives and an employed nanny who care for a child in the child’s own home. (The legal position of casual baby-sitters, of whatever age, is not at all clear!) The local authority may refuse registration to anyone it thinks unfit, and if it grants registration must impose conditions as to premises, numbers of children, and various other matters.
Local authorities must provide accommodation for children in need, or ensure that suitable voluntary agencies do so. This duty under s.20 replaces what was formerly known as “voluntary care”, and even the name is changed: such children are not described as being “in care” but are said simply to be “looked after” by the local authority.
Children Act 1989 s.20(1)
Every local authority shall provide accommodation for any child within their area who appears to them to require accommodation as a result of:
- there being no person with parental responsibility for him, or
- his being lost or having been abandoned, or
- 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.
In practice it is paragraph (c) that is most important: children provided with accommodation under this section are commonly those whose parents have died or are seriously ill.
The duty to provide accommodation extends to any “child in need” up to the age of 16, and to any young person between 16 and 18 if the local authority considers he “is likely to be seriously prejudiced if they do not provide him with accommodation”. Local authorities have the power (but not the duty) to provide accommodation for anyone up to 21 if they consider that this would safeguard or promote his or her welfare. The accommodation can be with a foster-parent, who may or may not be a friend or relative of the child, or in a children’s home (or a community home for those over 16).
The name “voluntary care” has gone but the voluntary nature of the provision remains: the local authority cannot provide accommodation for a child under 16 against the wishes of any person with parental responsibility who is willing and able to provide accommodation, and any person with parental responsibility may remove such a child at any time without even giving advance notice. If the child is over 16, however, the local authority may (and in some cases must) provide him with accommodation if he so requests, in spite of any objections that might be raised by his parents or guardians.
Any local authority intending to provide accommodation for a child of any age must try to ascertain the child’s own views and give due consideration to them, having regard to the child’s age and understanding. Under Regulations made following the Act, the terms of a child’s accommodation under s.20 should (where possible) be based on a written agreement between the local authority on the one hand and on the other a person with parental responsibility, or the child’s carer, or (where the child is over 16) the child himself.
Under s.22(3), a local authority looking after any child has a duty to safeguard and promote his welfare, and to make use of such services available for children cared for by their own parents as appears to the authority reasonable in his or her case. More generally, under s.22(4) the authority must, before making any decisions with respect to any children whom they are looking after, ascertain so far as is practicable the wishes and feelings of the child, of his parents, of anyone else who has parental responsibility, and of any other relevant person. (The same duties also apply in relation to children in care.)
Part IV of the Act deals with care and supervision orders, but no such order can be made unless three conditions are satisfied:
- An application must be made by the local authority or some other “authorised person”.
- The “threshold criteria” in s.31(2) must be met.
- The court must be satisfied that the child’s welfare requires such an order.
These are three separate criteria, and none of them can be regarded as trivial.
Application by the local authority
An application for a care order or a supervision order may be made by any local authority or by any other person authorised by the Secretary of State: in fact only the NSPCC and its officers have been so authorised. Such an application may be made in proceedings brought by the authority for that purpose, or in any other family proceedings, but without such an application the court has no power to make an order.
If in a particular case the court believes a care or supervision order would be appropriate, but cannot make such an order because no application has been made, it has power under s.37 to direct the local authority to carry out an investigation into the child’s circumstances. The local authority is then obliged to conduct the investigation and to consider whether or not to apply for an order under Part IV, and must inform the court of its reasons if it decides not to apply, but the court still has no power to make a care or supervision order without a formal application.
Although a local authority can still technically apply to have a child made a ward of court, s.100(2) prevents its doing so to obtain a care or supervision order (or for any purpose in respect of a child already in care). Similarly, s.100(3) requires the leave of the court before a local authority can seek any order in the court’s “inherent jurisdiction, and such leave will not be granted unless the court is satisfied that the desired result could not be achieved in any other way, and that the child is otherwise likely to suffer significant harm.
In any proceedings in which a care or supervision is sought, the court will appoint a litigation friend (normally a qualified social worker independent of the authority seeking the order) to safeguard the child’s interests, unless the court is sure this is unnecessary. The litigation friend has a duty to appoint a solicitor to act for the child (if he does not already have one), to ascertain the child’s own wishes insofar as his age and understanding allows, and to make a report to the court recommending an appropriate course of action.
Devon CC v G  FLR 1159, CA
LA sought to terminate M’s access to a child in care, hoping to put him up for adoption. The guardian ad litem recommended that M be allowed just two further visits, but the magistrates misunderstood and continued M’s access indefinitely. The judge quashed the magistrates’ order but made no new order, thereby allowing the current situation to continue. Allowing LA’s appeal, Arnold P said it is well establish that if magistrates have departed from a clear recommendation in a welfare report, and give no justification for so doing, an appeal will be allowed. Exactly the same principle should apply to any departure from the recommendations of the guardian ad litem.
Assuming an application has been made, the court must next satisfy itself that the “threshold conditions” for making a care or supervision order – they are the same in both cases – have been met. The conditions apply even if the parties to the proceeding all agree to the making of an order, though the court’s enquiries in such cases may be less rigorous than in cases where the application is opposed.
Re G (Care proceedings)  2 FLR 69, Wall J
LA applied for a care order for B8; M and F did not contest the application and agreed B would be likely to suffer significant harm if returned to F’s care. LA nevertheless wanted the judge to find as fact that F had neglected and abused B, and sought to introduce in evidence statements made by F to the police, which had been excluded as “unreliable” in unsuccessful criminal proceedings against F. The judge said the court must be satisfied by evidence that a child is likely to suffer significant harm as a result of the care (or lack of care) given by the parent against whom a care order is sought: no agreement between the parties can deprive the court of its duty to satisfy itself that the necessary criteria are met, although where there is agreement the enquiry need not be as thorough. He therefore invited LA to submit evidence to support its case, but declined to admit the statements made to the police.
Children Act 1989 s.31(2)
A court may only make a care or supervision order if it 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 theorder were not made, not being what it would be reasonable to expect aparent to give to him; or
- the child’s being beyond parental control.
Note that both (a) and (b) are required, but that (b) may be either (b)(i) or (b)(ii).
These conditions raise a number of difficult issues. First, there have been a number of cases on the meaning of the words “is suffering” and “is likely to suffer”.
Newham LBC v Attorney-General  1 FLR 281, CA
M was mentally ill and neglected both herself and her baby, and LA sought a care order (initially via the wardship jurisdiction). The judge found the child was likely to suffer harm if a care order was not made, and made an order accordingly. GM’s appeal failed: “likely to suffer” does not demand a balance of probabilities, and the judge’s view was reasonable on the evidence. Obiter, Parliament clearly intended the 1989 Act to protect the child, and strict legalistic analysis of the text is not normally appropriate.
C v C (Child abuse: access)  1 FLR 462, Latey J
In proceedings to review F’s access to his daughter G6 after allegations of abuse, F admitted that they had indulged in raucous horseplay which was very physical, rolling about together on the floor and tickling one another all over (sometimes inside clothes, but not in the genital area), and had played together in the bath. The judge accepted that this had not been for F’s own sexual gratification and that he was now aware of the inappropriateness of such behaviour, and ordered that his with G continue subject to supervision.
Re W (Residence order)  1 FCR 75, CA
A circuit judge took children B9 and G6 from M, with whom they had been living, and made a residence order in F’s favour, on hearing evidence that M and her boyfriend had allowed the children to see them naked and had sometimes shared baths with them. Allowing M’s appeal and ordering a rehearing before a High Court judge, Butler-Sloss LJ said a balance has to be struck between family behaviour seen by the participants as perfectly natural – nudity in the house and communal bathing are classic examples – and the sincerely held views of others (including the judge in this case) who are shocked by it. In a happy and well run family, how its members behave in their own home is their business and no one else’s, but when their family life becomes the subject of legal proceedings, their behaviour may be misunderstood.
There are also very wide differences of opinion as to the nature and amount of the corporal punishment a parent might reasonably inflict before it should be regarded as ill-treatment.
R v Derriviére (1969) 53 Cr App Rep 637, CA
This case is discussed above. A West Indian F appealed unsuccessfully against a 6-month prison sentence for assaulting his son B12 and causing him actual bodily harm. He had struck B several times in the face with his fist, causing extensive bruising and some bleeding in the mouth, and had (perhaps) banged his head against a wall, as a punishment for deliberate disobedience. Widgery LJ said standards of parental correction are different in the West Indies from those acceptable in England, but in England it is English law that applies and according to that law the chastisement was excessive.
Re H  2 FLR 12, Judge Callman
Two Vietnamese children, now aged 8 and 6, were taken into care and placed with foster parents with a view to adoption, and LA sought directions in wardship as to their future. There was evidence that their mother M had punished them with a stick and a slipper, sometimes hitting them on the head. The judge accepted that in oriental culture, chastisement with sticks (going beyond that acceptable in western society) is common practice. He said M’s parental behaviour should be set first against the reasonable objective standards of her own culture so long as these do not conflict with the minimum standards required in England, and remembering always that the child’s welfare is paramount. On the particular facts, he made an order for long-term foster care with a view to adoption.
C v Harris  SC 278, Court of Session (Scotland)
A mother C appealed against the sheriff’s decision to refer her four children to the children’s panel. C’s nine-year-old daughter D had hit a four-year-old neighbour, and when C smacked D for this, D swore at C. C then took D indoors and hit her once with a belt, accidentally hitting D’s leg instead of her bottom. Allowing C’s appeal, the court said C’s blow in anger did not in itself remove the defence of reasonable parental chastisement, and in the circumstances C had clearly committed no crime.
In January 2000 the Government published a consultation document setting out various options for legislation on the physical punishment of children by parents and others. The government is determined that parents should retain the right to smack, but suggests outlawing the use of implements and/or any punishment causing actual bodily harm, particularly to the head. There is also some discussion as to whether the right to smack should be restricted to parents, or whether it should extend to others in loco parentis (e.g. grandparents, baby-sitters) with the parents’ express or implied consent.
Third, the harm must be “significant”. In relation to health and development, s.31(10) requires comparison with what could be reasonably expected of a similar child, and guidelines issued by the Department of Health suggest that minor shortcomings in a child’s health or minor deficits in development should not require compulsory intervention unless cumulatively they are having (or are likely to have) a serious and lasting effect. There is apparently no formal guidance as to what might be “significant” ill-treatment – presumably it depends on the child’s age and state of development – but the question seems to have caused surprisingly few problems. Perhaps, as Prof. Cretney has suggested, the explanation is that any doubt as to whether harm is significant can in practice be resolved by applying the welfare test.
Fourth, the harm must be attributable to the care or lack of care given by the parent or other primary carer (not being what a reasonable parent would give), or alternatively, because the child is beyond parental control (which may be the parents’ fault or the child’s).
Northamptonshire CC v S  1 FLR 554, Ewbank J
Two children were taken into care following physical abuse and placed with foster parents. F sought a residence order in favour of his mother, but his application was opposed by M, LA and the guardian ad litem. F’s application was dismissed and his appeal failed. The judge said the statutory requirements that the child “is suffering” significant harm from his carers refer to the situation immediately before the protection procedure was implemented and to those caring for him at that time; the capabilities of other potential carers are irrelevant until the threshhold has been crossed.
Having crossed the threshold the court must also apply the welfare test, using the standard checklist in s.1(3), and may not make a care or supervision order unless it considers that doing so would be better than making no order at all. A number of decisions have made it clear that the welfare test is quite separate from the threshold: even where a child is suffering significant harm, his welfare does not necessarily require him to be removed from his family.
Humberside CC v B  1 FLR 257, Booth J
LA applied for an interim care order in respect of a small child B who had been neglected and possibly abused, currently living with an aunt A. The justices made such an order, but B appealed (by her guardian ad litem) and her appeal was allowed. The judge said the magistrates had clearly been satisfied on the evidence before them that there were reasonable grounds for thinking B was at risk of significant harm if she returned to her parents, but had not then given proper consideration to the quite separate question of whether B’s welfare required them to make an order. She remitted the case to the magistrates for further consideration, and made a prohibited steps order forbidding B’s removal from A’s care in the mean time.
Re M (Appeal) (No.2)  1 FLR 59, CA
A girl G6 alleged physical abuse by M and SF, but medical evidence tended to support their explanations of G’s injuries. LA applied for a care order, but the judge was not satisfied on the facts that G had been beaten or starved; M should have sought medical help sooner, and the threshold conditions were met, but it would not be in G’s best interests to make a care order. Instead he made a residence order in M’s favour subject to her living with her in-laws, and LA’s appeal was dismissed: the judge having crossed the threshold had properly applied the welfare test, and his conclusion was not plainly wrong.
In order to ensure that the court has the best available evidence when hearing applications under Part IV of the Children Act 1989 (and also under Part V), s.98(1) of the Act provides that no person called to give evidence is excused from doing so (or from answering a particular question) because his answers might incriminate him. To protect the right of freedom from self-incrimination, however, s.98(2) provides that no statement made in such proceedings may be used as evidence against its maker in any criminal proceedings except for perjury.
When an application has been made under s.31(2), the court may make any one of the following orders, but not more than one except as indicated:
- a care order or a supervision order (regardless of which was initiallyapplied for), but not both;
- an interim care order or interim supervision order effe
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