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Derby and Derbyshire Safeguarding Children Boards' Procedures Manual

The Legal Framework

SCOPE OF THIS CHAPTER

All organisations that work with children and families share a commitment to safeguard and promote their welfare, and for many agencies that is underpinned by a statutory duty or duties.

This chapter provides and overview of the legislation most relevant to work to safeguard and promote the welfare of children.

Please Note: Working Together to Safeguard Children – Following publication in July of the revised statutory guidance Working Together to Safeguard Children (2018), the Derby and Derbyshire Safeguarding Children Boards’ Procedures will be reviewed by local partner agencies, and updated as required to reflect the new guidance. In the meantime these procedures continue to reflect practice locally and must be followed when responding to safeguarding concerns about a child. Under the Children and Social Work Act 2017, Serious Case Reviews will be replaced by new national and local arrangements for reviewing serious cases. LSCBs must continue to carry out all their statutory functions, including commissioning SCRs, until the point at which safeguarding partner arrangements begin to operate in a local area.

This chapter is currently under review.

Contents

  1. Children Act 2004
  2. Education Act 2002
  3. Children Act 1989
  4. Emergency Protection Powers
  5. Police Reform and Social Responsibility Act 2011
  6. Childcare Act 2006
  7. Crime and Disorder Act 1998
  8. Housing Act 1996
  9. The Care Act 2014
  10. The Children and Social Work Act 2017

1. Children Act 2004

Section 10 requires each local authority to make arrangements to promote co-operation between the authority, each of the authority's relevant partners and such other persons or bodies, working with children in the local authority's area, as the authority consider appropriate. The arrangements are to be made with a view to improving the well-being of children in the authority's area - which includes protection from harm or neglect alongside other outcomes.

Section 11 requires a range of organisations to make arrangements for ensuring that their functions, and services provided on their behalf, are discharged having regard to the need to safeguard and promote the welfare of children.

Section 13 of the Children Act 2004 requires each local authority to establish a Local Safeguarding Children Board (LSCB) for their area and specifies the organisations and individuals (other than the local authority) that the Secretary of State may prescribe in regulations that should be represented on LSCBs.

Section 14 of the Children Act 2004 sets out the objectives of LSCBs, which are:

  1. To coordinate what is done by each person or body represented on the Board for the purposes of safeguarding and promoting the welfare of children in the area of the local authority; and
  2. To ensure the effectiveness of what is done by each such person or body for the purposes of safeguarding and promoting the welfare of children.

The LSCB Regulations 2006 made under Section 13 set out the functions of LSCBs, which include undertaking reviews of the deaths of all children in their areas and undertaking Serious Case Reviews in certain circumstances.

Under Section 55 of the Borders, Citizenship and Immigration Act 2009 the Secretary of State (in practice, UK Visas and Immigration or 'UKVI') has a duty to ensure that functions relating to immigration and customs are discharged with regard to the need to safeguard and promote the welfare of children. Section 55 is intended to have the same effect as Section 11 of the Children Act 2004.

2. Education Act 2002

Section 175 puts a duty on local education authorities, maintained (state) schools, and further education institutions, including sixth form colleges, to exercise their functions with a view to safeguarding and promoting the welfare of children - children who are pupils and students under 18 years of age, in the case of schools and colleges.

And the same duty is put on independent schools, including Academies/Free Schools, by regulations made under s157 of that Act.

3. Children Act 1989

The Children Act 1989 places a duty on Councils with Social Services Responsibilities (CSSRs) to promote and safeguard the welfare of children in need in their area.

Section 17(1) of the Children Act 1989 states that it shall be the general duty of every local authority:

  • To safeguard and promote the welfare of children within their area who are in need; and
  • So far as is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children's needs.

Section 17(5) of the Children Act 1989 enables the local authority to make arrangements with others to provide services on their behalf and states that every local authority:

  1. Shall facilitate the provision by others (including in particular voluntary organisations) of services which it is a function of the authority to provide by virtue of this section, or Section 18, 20, 22A to 22C, 23B to 23D, 24A or 24B; and
  2. May make such arrangements as they see fit for any person to act on their behalf in the provision of any such service.

Section 17 (10) states that a child shall be taken to be in need if:

  1. The child is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;
  2. The child's heath or development is likely to be significantly impaired, or further impaired, without the provision or such services; or
  3. The child is disabled.

Under section 17, local authorities have responsibility for determining what services should be provided to a child in need. This does not necessarily require local authorities themselves to be the provider of such services.

Section 47(1) of the Children Act 1989 states that:

Where a local authority:

  1. Are informed that a child who lives, or is found, in their area is the subject of (i) an emergency protection order, or (ii) is in police protection, or (iii) has contravened a ban imposed by a curfew notice imposed within the meaning of Chapter I of Part I of the Crime and Disorder Act 1998; or
  2. Have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or likely to suffer, significant harm: The authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child's welfare.

In the case of a child falling within paragraph (a) (iii) above, the enquiries shall be commenced as soon as practicable and in any event, within 48 hours of the authority receiving the information.

4. Emergency Protection Powers

There are a range of powers available to local authorities and their statutory partners to take emergency action to safeguard children:

Emergency Protection Orders

The court may make an emergency protection order under s44 of the Children Act 1989 if it is satisfied that there is reasonable cause to believe that a child is likely to suffer significant harm if:

  • He is not removed to accommodation; or
  • He does not remain in the place in which he is then being accommodated.

An emergency protection order may also be made if s47 enquiries are being frustrated by access to the child being unreasonably refused to a person authorised to seek access, and the applicant has reasonable cause to believe that access is needed as a matter of urgency.

An emergency protection order gives authority to remove a child, and places the child under the protection of the applicant for a maximum of eight days (with a possible extension of up to seven days).

Exclusion Requirement

The Court may include an exclusion requirement in an emergency protection order or an interim care order (Section 38A and 44A of the Children Act 1989). This allows a perpetrator to be removed from the home instead of having to remove the child. The Court must be satisfied that:

  • There is reasonable cause to believe that if the person is excluded from the home in which the child lives, the child will cease to suffer, or cease to be likely to suffer, significant harm or that enquires will cease to be frustrated; and
  • Another person living in the home is able and willing to give the child the care which it would be reasonable to expect a parent to give, and consents to the exclusion requirement.

Police Protection Powers

Under s46 of the Children Act 1989, where a police officer has reasonable cause to believe that a child would otherwise be likely to suffer significant harm, (s)he may:

  • Remove the child to suitable accommodation and keep him or her there; or
  • Take reasonable steps to ensure that the child's removal from any hospital, or other place in which the child is then being accommodated is prevented.

No child may be kept in police protection for more than 72 hours.

5. Police Reform and Social Responsibility Act 2011

Section 1 (8)(h) requires the police and crime commissioner to hold the chief constable to account for the exercise of the latter's duties in relation to safeguarding children under Section 10 and Section 11 of the Children Act 2004.

6. Childcare Act 2006

Section 40 requires early years providers to comply with the welfare requirements of the Early Years Foundation Stage.

7. Crime and Disorder Act 1998

Section 38 requires local authorities, within the delivery of youth justice services, to ensure the provision of persons to act as appropriate adults to safeguard the interests of children and young persons detained or questioned by police officers.

8. Housing Act 1996

Under Section 213A of the Housing Act 1996 (inserted by Section 12 of the Homelessness Act 2002) Section 12, housing authorities are required to refer homeless persons with dependent children who are ineligible for homelessness assistance or are intentionally homeless, as long as the person consents. If homelessness persists, any child in the family could be in need. In such cases, if social services decide the child's needs would be best met by helping the family to obtain accommodation, they can ask the housing authority for reasonable assistance in this and the housing authority must respond.

9. The Care Act 2014

The Care Act 2014 sets out a clear legal framework for how local authorities and other parts of the health and care system should protect adults at risk of abuse or neglect. This includes requiring local authorities to set up a Safeguarding Adults Board, in similar terms as a Children's Safeguarding Board.

The Act also requires local authorities to make enquiries, or ask others to make enquiries, when they think an adult with care and support needs may be at risk of abuse and neglect in their area and to find out what if any action may be needed.

The Care Act 2014 stipulates that where it appears to a local authority that a child is likely to have needs for care and support after becoming 18, the authority must, if it would be of significant benefit to the child to do so, and if the consent condition is met, assess the following:

  • Whether the child has needs for care and support and what those needs are; and
  • Whether the child is likely to have needs for care and support after becoming 18 and what those needs are likely to be.

It is clearly imperative that there is good communication between the Local Safeguarding Children Board and Safeguarding Adults Board, to ensure that relevant information is shared regarding children and adults who may be at risk.

10. Children and Social Work Act 2017

The Children and Social Work Act received Royal Assent on 27th April 2017.

The Act aims to:

  • Improve support for looked after children in England and Wales especially for those leaving care;
  • Enable better learning about effective approaches to child protection and care in England;
  • Establish a new regulatory regime for the social work profession in England.

The act contains a number of sections which will impact on the work of Local Safeguarding Children Boards, these include:

  • The establishment of a Child Safeguarding Practice Review Panel to identify serious child safeguarding cases in England which raise issues that are complex or of national importance, and, where the panel considers it appropriate, to arrange for those cases to be reviewed under their supervision so as to identify any improvements that should be made by safeguarding partners or others to safeguard and promote the welfare of children;
  • Abolition of Local Safeguarding Children Boards, and introduction of local safeguarding partnership arrangements for safeguarding and promoting the welfare of children (The safeguarding partners for a local authority area in England are the local authority; a clinical commissioning group for an area any part of which falls within the local authority area; the chief officer of police for a police area any part of which falls within the local authority area);
  • Local child safeguarding practice reviews - the safeguarding partners for a local authority area in England must make arrangements (a) to identify serious child safeguarding cases which raise issues of importance in relation to the area, and (b) for those cases to be reviewed under the supervision of the safeguarding partners, where they consider it appropriate to identify any improvements that should be made by persons in the area to safeguard and promote the welfare of children;
  • Child death reviews - the child death review partners for a local authority area in England must make arrangements for the review of each death of a child normally resident in the area.