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.
- 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.
- 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.