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1.4.5 Legal Framework

Contents

  1. Introduction
  2. Parental Responsibility
  3. Police Protection Powers
  4. Emergency Protection Orders
  5. Section 47 Enquiries / Investigations
  6. Care and Supervision Orders
  7. Exclusion Order
  8. Sexual Offences Act 2003
  9. Sex Offenders


1. Introduction

The Children Act 1989 sets out the principles of legal intervention in child protection work. For further information see the Children Act 1989, Working Together to Safeguard Children Guidance 2015, The Adoption and Children Act 2002 or contact the Local Authority Legal Services.


2. Parental Responsibility

A key concept introduced in the Act is Parental Responsibility which means all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child.


3. Police Protection Powers

In situations of great urgency where there is reason to believe that the child is in immediate risk the police have the powers to remove the child to suitable accommodation and keep them there or to prevent the child being removed from hospital or other accommodation. The police officer exercising this power must have reasonable grounds to believe that the child would otherwise suffer Significant Harm.

This is without any reference to a court or to a magistrate.

The Police Protection Power does not give the police Parental Responsibility and only lasts for a period up to 72 hours during which time the police must liaise with the Social Services Department and inform the parents and the Local Authority that the child is being removed to a place of safety.

These powers are used on an emergency basis and where it is usually not possible to apply before magistrates in an Emergency Protection Order.


4. Emergency Protection Orders

An application for an Emergency Protection Order cannot be made unless the following grounds are established:

  • The Court must be satisfied that there is reasonable cause to believe that the child is likely to suffer Significant Harm if not removed to accommodation provided by the applicants, or does not remain in the current location; or
  • The Local Authority investigation of risk to the child is being frustrated by unreasonable refusal of access.

When an Emergency Protection Order is made it is for a specified period with the maximum duration being 8 days. The order may be extended only once. There is no appeal against the making of an order.

An application for an Emergency Protection Order can only be made by an authorised person, e.g. NSPCC Officer or a Local Authority Social Services Department Officer. Orders should where possible be applied for on notice to those with Parental Responsibility and the guidance in Re X (2006) should always be followed.

The effect of making an Emergency Protection Order is that the applicant shares Parental Responsibility with the child's mother and anybody else who has Parental Responsibility for the child. Contact should be afforded to those specified under s44[13] of the 1989 Act.

Application can be made outside Court hours by liaison with the Court and the application can be made to an individual Magistrate.

If, during the course of an Emergency Protection Order it appears to the Local Authority that it would be safe to return the child to the family, then the Local Authority are under a duty to do so.


5. Section 47 Enquiries / Investigations

Where a Local Authority have reason to suspect that a child who lives, or is found in their area, is suffering, or is likely to suffer, Significant Harm, they will ensure that enquiries are made to enable them to decide whether they should take any action to safeguard or promote the child's welfare.


6. Care and Supervision Orders

Application can be made by the Local Authority to the Family Proceedings Courts for the child to be the subject of a Care Order or Supervision Order. At an initial hearing the child may be made subject to an Interim Order initially for up to eight weeks and thereafter 4 weeks.

The grounds for making such an application are that court must be satisfied that:-

  • The child concerned is suffering Significant Harm or is likely to suffer Significant Harm; and
  • 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; the care not being what it would be reasonable for a parent to give him; or
  • The child is beyond parental control

The Court must be satisfied that to make an Order is in the child's best interest and be guided by the principles of the Children Act 1989 in particular the welfare checklist.


7. Exclusion Order

The Family Law Act 1996 allows a perpetrator to be removed from the home instead of having to remove the child. The Court can consider an Exclusion Order application alongside either an Interim Care Order or an Emergency Protection Order. An Exclusion Order can also deal with the exclusion of a person from the area around the family home.

The Court can also consider the imposition of a Non-Molestation Order under the Family Law Act which prevents the perpetrator from molesting either the applicant or the child. Both can prohibit particular actions and behaviour or molestation in general. It is possible to get the above orders either on notice or on an emergency basis.


8. Sexual Offences Act 2003

This Act requires a person who:

  • Is convicted in the UK of an offence under Schedule 3 for; or
  • Is found not guilty by reason of insanity or disability of certain sexual offences committed in the UK or abroad, within 3 days of the relevant date to do so, register his name and address with the Police.

The period of registration is for a minimum period of 2 years to an indefinite period.

For someone under 18 years at the time of conviction, other than the maximum period, these periods are halved.

A conviction in this instance will also include a Police adult caution, reprimand, or final warning.

Failure to comply with the registration renders the offender liable to a fine or imprisonment for up to 6 months. (In the case of an offender under 18 years, liable to a fine only.)

There is a requirement on the Police to be the lead agency in conducting a risk assessment and managing the registered offender.

In circumstances where the offender is detained in Local Authority secure accommodation, the Court or the Police will forward to the responsible authorities a copy of the notice of requirement to register.

Where a young offender who is Looked After by a Local Authority is reprimanded or given a final warning for a relevant sex offence, it is the young person's own responsibility for complying with the notification requirements.

The relevant offences are contained within Schedule 3 of the Sexual Offences Act 2003. In order not to be confused with Schedule 1 Offenders in the Children and Young Persons Act 1933, sex offenders who are registered should be referred to as 'Registered Sex Offenders'. 'The distinction being that their offences may have been committed against adults.


9. Sex Offenders

This came into force on 1 December 1998 and refers to convicted sex offenders who have committed offences either in the UK or abroad.

A sex offender must have acted in such a way as to give reasonable cause to believe that an order is necessary to protect the public from serious harm (death or serious personal injury, whether personal or psychological), caused by such further offences committed by him or her.

The Police are the only body with authority to apply to a Magistrates Court for orders setting out prohibitions, which are designed to protect the public from serious harm.

Application will only be made after a Multi Agency Public Protection Panel (MAPPA) has considered the circumstances of the case, and the Divisional Commander has authorised the application.

After such an order is made, the sex offender will be required to register with the Police under the Sexual Offences Act.

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