The Threshold Criteria under the
Children's Act 1989
S31(2)
Children’s Act 1989
states that a court may only issue a care or supervision order if
the court is satisfied that:
- The child concerned is suffering or is
likely to suffer significant harm and that harm or likelihood of
harm is as a result of the care given to the child if the order
were not made it his favour, and/or the child being beyond
parental control.
- The courts cannot issue an order in
respect of a child who has reached the age of seventeen, or
sixteen if the child is married.
- An application for a care or supervision
order may be made on its own or alongside any other family
proceedings.
Care order proceedings: Care Plan
- When an order is made for the application
of a care plan the appropriate local authority must, within the
time frame set by the court, prepare a ‘care plan’ for the
future care of the child.
What is Significant Harm?
- Significant harm in relation to family
law proceedings means the ill-treatment or the impairment of the
health or development .
- The development of the child refers to
the physical, intellectual, emotional, social or behavioural
development.
- Ill-treatment refers to any form of
ill-treatment that is not physical, physical and sexual abuse.
The meaning of ‘Is Suffering’
- If at the time of the court hearing there
are arrangements in place for the protection of the child by the
local authority, the relevant date with respect to the court
that must be satisfied is the date at which the local authority
intervened to protect the child. If after the local authority
has issued arrangements the need for the arrangements has run
out, as the child’s welfare is sufficiently protected, the
relevant date for the court to consider in relation to ‘is
suffering’ is the date of the court hearing.
‘Likely to Suffer’
- Likely is used in the sense of a real
possibility, a possibility that cannot sensibly be ignored
having regard to the nature and gravity of the featured harm in
the particular case in question. The more serious the allegation
the less likely the event occurred and so the stronger the
evidence needs to be to prove it did or did not occur.
Representation of the Child
- In the event if care or supervision
proceedings the courts must appoint a representative , this is
usually a CAFCASS officer (Children and Family Court
Advisory and Support Services officer). The only time an officer
will not be appointed is if the child’s interest and welfare can
be safeguarded without an officer.
- The child’s representative must then appoint a solicitor to
act on behalf of the child and give instruction on the child’s
behalf, except where the child is capable of giving instructions
themselves and their views conflict with those of the
representative , when the solicitor must take instruction from
the child.
The Effects of a Care or Supervision Order
- Although the two orders have the same threshold criteria,
the two orders are completely different and a supervision order
should not be seen as a watered down version of a care order.
- A supervision order is designed to allow the local authority
to keep a reasonable amount of control over the child where
there is a risk of harm but not enough harm to constitute a care
order.
Care Orders
- Once a care order is issued the parents of the child
concerned do not loose parental responsibility over their child,
but the local authority does have the power to determine to what
extent the parents can exercise their parental responsibility.
The local authority will only do so if they believe this will
help safeguard the child’s welfare.
- There is a statutory presumption that there should remain
reasonable parental contact. The parents can go directly to the
court and if a care order is made all other section 8 orders
will be revoked.
- Interim care orders can also be issued which will name a
person to vacate the premises and also attaches a power of
arrest if required.
Supervision Orders
- There are no direct enforcement mechanisms in relation to
supervision orders. The Local authority does not gain parental
responsibility and will assist and befriend the child.
- A supervision order can be made in the first instance for up
to one year only, but the supervisor can have the order extended
for up to three years
- The Court has no jurisdiction to impose conditions on a
supervision order.
Contact In Care
- The court, prior to making a care order, must consider any
contact arrangements the local authority has already made . Once
a child is in care, the local authority must allow the child
reasonable contact with his parents, any guardian and any person
who may have a residence order.
What is meant by ‘reasonable’ contact?
- Reasonable contact does not mean contact at the discretion
of the local authority, but more so contact which is agreed
between the authority and the parents, or contact which is
objectively reasonable.
Discharge of a care order
- A care order lasts until a child is 18, unless is brought to
an end earlier . A care order can be discharged on application
by any person with parental responsibility, the child himself,
or the local authority.
Discharge and Variation of a Supervision
Orders
- Any person with parental responsibility
for the child, the child themselves or the supervisor can apply
to have a supervision order varied or discharged.
Interim care and Supervision Orders
- The first interim order can last up to 8
weeks, following orders up to four weeks. There is no limit on
the number of interim care orders that can be made.
- There must always be a good reason for
the continuation and extension of supervision orders.
- An interim order may give directions in
respect of medical or psychiatric examination or other
assessment or that no examination or assessment is to take
place. If the child is of sufficient understanding, He/She may
refuse to submit such examination or assessments but this can be
overridden by the court.
