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Derby and Derbyshire Safeguarding Children Partnership Procedures Manual

The Legal Framework

SCOPE OF THIS CHAPTER

Local authorities, working with partner organisations and agencies, have specific duties to safeguard and promote the welfare of all children in their area. This chapter provides an overview of the legislation most relevant to work to safeguard and promote the welfare of children, it has been drawn from, and should be read in conjunction with, the DfE publication Working Together to Safeguard Children – Statutory Framework: Legislation Relevant to Safeguarding and Promoting the Welfare of Children (July 2018).

Contents

  1. Children Act 2004
  2. Education Act 2002
  3. Children Act 1989
  4. Emergency Protection Powers
  5. Legal Aid, Sentencing and Punishment of Offenders Act 2012
  6. Police Reform and Social Responsibility Act 2011
  7. Childcare Act 2006
  8. Crime and Disorder Act 1998
  9. Housing Act 1996

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 who exercise functions or are engaged in activities in relation to 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 places duties on a range of organisations to make arrangements for ensuring that their functions, and services that they contract out to others, are discharged with regard to the need to safeguard and promote the welfare of children.

Sections 16A – 16D Under Section 16A, the Secretary of State must establish the Child Safeguarding Practice Review Panel (the Panel). The Panel’s functions are to identify serious child safeguarding cases which raise issues that are complex or of national importance and to arrange, where appropriate, for those cases to be reviewed. The Child Safeguarding Practice Review and Relevant Agency (England) Regulations 2018 set out the criteria the Panel must take into account when determining whether serious child safeguarding cases raise issues that are complex or of national importance, along with arrangements for national reviewers and reports. Section 16C places a duty on local authorities to notify the Panel of events where they know or suspect that a child has been abused or neglected and the child dies or is seriously harmed in the local authority’s area, or dies or is seriously harmed outside England while normally resident in the local authority’s area.

Sections 16E – K establish the roles and responsibilities of safeguarding partners.

‘Safeguarding partners’ are defined as the local authority, a clinical commissioning group and the chief officer of police within the local authority area. It also requires safeguarding partners to make arrangements for themselves (and relevant agencies [1] they consider appropriate) to work together to safeguard and promote the welfare of children in their area. This must include arrangements to identify and respond to the needs of children in their area.

Section 16F requires local safeguarding partners for a local authority to make arrangements to identify serious child safeguarding cases which raise issues of importance in relation to the area and, where appropriate, for those cases to be reviewed under their supervision. The purpose of these reviews is to identify improvements which should be made locally to safeguard and promote the welfare of children. The Child Safeguarding Practice Review and Relevant Agency (England) Regulations 2018 set out the criteria that the safeguarding partners must take into account when determining whether serious child safeguarding cases raise issues of importance in relation to the area, along with arrangements for local reviewers and reports.

Section 16G requires safeguarding partners to publish their arrangements, and to ensure scrutiny of these arrangements by an independent person. It also requires the safeguarding partners to prepare and publish, at least once every 12 months, a report on the work they have done and how effective their arrangements have been in practice.

Section 16J enables the safeguarding partners for two or more local authority areas to agree that their areas be treated as single area.

Section 16M sets out the requirement on the child death review partners to make arrangements for the review of each death of a child normally resident in the area, or if they deem it appropriate, a child who is not normally resident. It also requires partners to make arrangements for the analysis of information gathered by their reviews. Child death review partners must also prepare and publish reports on what they have done as a result of their arrangements, including how effective the arrangements have been in practice.

Section 16P enables child death review partners for two or more local authority areas in England to agree that their areas are to be treated as a single area.

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.

[1] A ‘relevant agency’ is defined as a person who is specified in regulations (the Child Safeguarding Practice Review and Relevant Agency (England) Regulations 2018) and exercises functions in relation to children within the area.

2. Education Act 2002

Section 175 places a duty on:

  1. Local authorities in relation to their education functions: and
  2. The governing bodies of maintained schools and the governing bodies of further education institutions (which include sixth form colleges) in relation of their functions relating to the conduct of the school or the institution.

    To make arrangements for ensuring that such functions are exercised with a view to safeguarding and promoting the welfare of children who are either pupils at the school or who are students under 18 years of age attending the further education institution.)

    A similar duty applies to proprietors of independent schools (which includes academies / free schools) by virtue of regulations made under Section 94(1) and (2) of the Education and Skills Act 2008 and the Education (Independent School Standards) Regulations 2014.
Regulations made under Section 342 of the Education Act 1996 and the Non-Maintained Special Schools (England) regulations 2015, set out the requirements for a non-maintained special school to be approved and continue to be approved by the Secretary of State. It is a condition of approval and continuing approval that arrangements must be in place for safeguarding and promoting the health, safety and welfare of pupils and when making such arrangements, the proprietor of the school must have regard to any relevant guidance published by the Secretary of State.

3. Children Act 1989

The Children Act 1989 places a duty on local authorities 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:

  1. To safeguard and promote the welfare of children within their area who are in need; and
  2. 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 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.

Provisions relating to young carers and parent carers were inserted into Part 3 of the Children Act 1989 by Sections 96 and 97 of the Children and Families Act 2014.

Section 17ZA states that a local authority must assess whether a young carer within their area has needs for support and, if so, what those needs are. This is either where:

  1. It appears to the authority that the young carer may have needs for support; or
  2. The authority receives a request from the young carer or a parent of the young carer to assess the young carer’s needs for support.

Section 17ZC requires a local authority that carries out a young carer’s needs assessment to consider the assessment and decide:

  1. Whether the young carer has needs for support in relation to the care which he or she provides or intends to provide;
  2. If so, whether those needs could be satisfied (wholly or partly) by services which the authority may provide under Section 17; and
  3. If they could be so satisfied, whether or not to provide any such services in relation to the young carer.

Section 17ZD states that a local authority in England must assess whether a parent carer of a disabled child who lives within their area has needs for support and, if so, what those needs are, if:

  1. It appears to the authority that the parent carer may have needs for support; or
  2. The authority receive a request from the parent carer to assess the parent carer’s needs for support; and
  3. The local authority is satisfied that the disabled child cared for and the disabled child’s family are persons for whom they may provide or arrange for the provision of services under Section 17 of the Act.

The local authority need not carry out a young carer’s assessment (under Section 17ZA) or a parent carer’s assessment (under Section 17ZD) if the local authority has previously carried out a care-related assessment of the young carer/parent carer in relation to the same person cared for, unless it appears to the authority that the needs or circumstances of the young carer/parent carer or the person they care for have changed since the last care-related assessment.

Section 17ZF requires the local authority that carries out a parent carer’s needs assessment to consider the assessment and decide:

  1. Whether the parent carer has needs for support in relation to the care they provide;
  2. Whether the disabled child cared for has needs for support;
  3. Whether any needs identified could be satisfied (wholly or partly) by services which the authority may provide under Section 17 of the Act; and
  4. Whether or not to provide any such services in relation to the parent carer or the disabled child cared for.

Section 27 imposes a duty on other local authorities, local authority housing services and health bodies to co-operate with a local authority in the exercise of that authority’s duties under Part 3 of the Act which relate to local authority support for children and families.

Where it appears to a local authority that any authority or body mentioned in Section 27(3) could, by taking any specified action, help in the exercise of any of their functions under Part 3 of the Act, they may request the help of that other authority or body, specifying the action in question. An authority or body whose help is so requested must comply with the request if it is compatible with their own statutory or other duties and obligations and does not unduly prejudice the discharge of any of their functions. The authorities are:

  1. Any local authority;
  2. Any local housing authority;
  3. NHS England;
  4. Any clinical commissioning group, Special Health Authority National Health Service Trust or NHS Foundation Trust; and
  5. Any person authorised by the Secretary of State for the purpose of section

Section 47(1) 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
  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;
  3. 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.

Section 47(9) places a duty on persons mentioned in Section 47(11) where a local authority is conducting enquiries under Section 47, to assist them with these enquiries (in particular by providing relevant information and advice) if called upon by the local authority to do so. Both Section 17 and Section 47 of the Children Act 1989, require in each case that in order to help it to determine what services to provide or what action to take, the local authority must, so far as is reasonably practicable and consistent with the child’s welfare:

  1. Ascertain the child’s wishes and feelings regarding the provision of those services or the action to be taken; and
  2. Give due consideration (with regard to the child’s age and understanding) to such wishes and feelings of the child as they have been able to ascertain.

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 (EPO) with respect to a child under Section 44 of the Children Act 1989 on the application of any person if it is satisfied that there is reasonable cause to believe that a child is likely to suffer significant harm if the child:

  • Is not removed to accommodation provided by or on behalf of the applicant; or
  • Does not remain in the place in which he is then being accommodated.

An EPO may also be made by the court if, on the application of a local authority, Section 47 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.

Otherwise, an authorised person may make an application for an EPO if:

  1. The applicant has reasonable cause to suspect that a child is suffering, or is likely to suffer, significant harm;
  2. The applicant is making enquiries with respect to the child’s welfare; and
  3. Those 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 to the child is required as a matter of urgency
An emergency protection order gives authority to remove a child to accommodation provided by or on behalf of the applicant, and places the child under the protection of the applicant for a maximum of 8 days (with a possible extension of up to 7 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 or prohibited entrance to the home or to be excluded from a defined area in which the home is situated, 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 not 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 inclusion of an exclusion requirement in the relevant order.

Police Protection Powers

Under Section 46 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, the officer 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.

Under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPOA), all children remanded in criminal proceedings will be looked-after. Children may be remanded to accommodation provided by the local authority or, if relevant conditions are met, to youth detention accommodation (YDA). The authority responsible for a child who becomes looked-after following remand is usually the one where the child normally lives, but where there is a doubt about this the court may initially determine which authority should be designated as being responsible for the child’s care.

Where a child is remanded to local authority accommodation, the local authority’s care planning responsibilities will be the same as for any other looked-after child (though authorities are not required to produce a “plan for permanence” for this group of children). Where a child, including a child already looked-after, is remanded to YDA, the local authority will be required to produce a Detention Placement Plan, describing the arrangements for responding to the child’s needs whilst they are detained. The Care Planning, Placement and Case Review Regulations 2010, as amended, take LASPOA into account.

6. Police Reform and Social Responsibility Act 2011

Section 1 (8)(h) requires the police and crime commissioner for a police area 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.

7. Childcare Act 2006

Section 40 requires early years providers registered on the Early Years register and schools providing early years childcare to comply with the welfare requirements of the Early Years Foundation Stage.

8. Crime and Disorder Act 1998

Section 38 requires local authorities, acting in co-operation with certain persons (including every Chief Police Officer or local policing body whose area lies within that of the local authority, clinical commissioning groups and providers of probation services), to such extent as is appropriate for their area, to secure that youth justice services are available in their area, such services to include the provision of persons to act as appropriate adults to safeguard the interests of children and young persons detained or questioned by police officers.

9. Housing Act 1996

Under Section 213A of the Housing Act 1996 requires housing authorities to refer to adult social care services persons with whom children normally reside or might reasonably be expected to reside, who have reason to believe may be ineligible for assistance, or who may be homeless and may have become so intentionally, 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 give reasonable advice and assistance.