The Legislative Framework for Child Protection
- Children Act 1989
- Children Act 2004
- Adoption and Children Act 2002
- Data Protection Act 1998
- Domestic Violence, Crime and Victims Act 2004
- Human Rights Act 1998
- Sexual Offences Act 2003
- Serious Organised Crime and Police Act 2005
- Safeguarding Children and Safer Recruitment in Education 2006
- Home Alone - No Legislation
- Using the Criminal Law to Protect Children
Children Act 1989
The current Child Protection system in England and Wales is based on the Children Act 1989 (external link).
Main Themes of the Children Act 1989
- The main theme of the Children Act 1989 is that the welfare of the child is paramount when making decisions about the child's upbringing - this represents a new emphasis on children's rights.
- The Children Act 1989 states the importance of working in 'partnership' with parents and families.
- Courts must also ascertain the wishes and feelings of the child.
- The Children Act 1989 also places a strong emphasis on children remaining within their families of origin wherever possible and, when the child must live elsewhere, to preserve family links.
- The Children Act 1989 introduced the idea of parental responsibility, formerly known as parental rights, which sets out the duties, powers, responsibilities, rights and responsibilities of the parent or carer.
Threshold for Child Protection (S.47)
The Children Act 1989 sets out in detail what local authorities and the courts should do to protect the welfare of children. Local authorities are charged with the "duty to investigate if they have reasonable cause to suspect that a child who lives, or is found in their area, is suffering or is likely to suffer significant harm" (Section 47, Children Act 1989).
Threshold for Children in Need (S.17)
Local authorities are charged with a duty to provide "services for children in need, their families and others".
Children in need are defined as children who are aged under 18 and:
- need local authority services to achieve or maintain a reasonable standard of health or development
- need local authority services to prevent significant or further harm to health or development
- are disabled
Children in Care and Care Orders
- Voluntary Care Order (S.20): Some children are looked after by the Local Authority by agreement with, or at the request of, their parents. Under Section 20 of the Children Act, it is the duty of all Local Authorities to make accommodation available for such children in need. Children may be accommodated (in residential or foster care) for a short or longer period. No court proceedings are involved, and the parents retain full parental responsibility, and can remove their children from care at any time.
- Care Order (S.33): A long-term order which commits the child to the care of the local authority. It provides extensive powers to local authorities but requires evidence which demonstrates to the court that a child is suffering or likely to suffer significant harm and that the harm or likelihood of harm is attributable to a lack of adequate parental care or control
- Interim Care / Supervision Order (S.38): Orders made pending a full hearing of the application for a care order (S.33). An initial interim order cannot last longer than 8 weeks. Subsequent interim orders cannot last longer than 4 weeks.
- Emergency Protection Order (S.44): A short-term order (up to 8 days) which either removes the child on a short-term basis or allows the child to be kept in a place of safety or requires an alleged abuser to leave the family home. The grounds for the emergency protection order are much easier to prove.
- Removal and Accommodation of Children by Police (S.46): A short-term measure (72 hours) where no court order is necessary for the police to implement this power which enables the police to remove the child or to keep the child in a safe place.
Children Act 2004
The Government’s response to the 2002 Victoria Climbié Inquiry (external link) was the Every Child Matters (external link) programme, which in turn led to the Children Act 2004 (external link). The Children Act 2004 does not replace or even amend much of the Children Act 1989 (external link) - both acts of parliament remain in force.
The Children Act 2004 sets out the process for integrating services to children so that every child can achieve the five outcomes laid out in the Every Child Matters green paper:
- Be healthy
- Stay safe
- Enjoy and achieve
- Make a positive contribution
- Achieve economic well-being
Besides promoting the Every Child Matters outcomes for all children, the Children Act 2004:
- Creates the post of Children's Commissioner for England
- Places a duty on local authorities to appoint a director of children’s services and an elected lead member for children’s services, who will be ultimately accountable for the delivery of services
- Establishes Children's Trusts
- Places a duty on local authorities and their partners (including the police, health service providers and the youth justice system) to co-operate in promoting the wellbeing of children and young people and to make arrangements to safeguard and promote the welfare of children
- Puts the new Local Safeguarding Children Boards (LSCBs) on a statutory footing (replacing the non-statutory Area Child Protection Committees)
- Updates the legislation on physical punishment by making it an offence to hit a child if it causes mental harm or leaves a mark on the skin (Section 58), repealing the section of the Children and Young Persons Act 1933 (external link) which provided parents with the defence of “reasonable chastisement".
Adoption and Children Act 2002
This act came into force in December 2005 and added a new Section 14A to the Children Act 1989 where an application for a Special Guardianship Order can be made.
The Special Guardianship Order appoints ‘one or more individuals to be a child’s ‘special guardian’ (or special guardians). A special guardian must be aged eighteen or over and must not be the parent of the child in question’.
Children living in households where domestic violence is happening are now identified as "at risk" under the Adoption and Children Act 2002 (external link). Section 120 of this act extended the legal definition of harming children to include harm suffered by seeing or hearing ill treatment of others. This would include witnessing domestic abuse.
The Data Protection Act 1998
The Data Protection Act 1998 (external link) provides a framework to ensure that information is shared appropriately; it is NOT a barrier to information sharing.
The Data Protection Act 1998 establishes the following 8 principles in relation to the management of personal data:
- Personal data should be processed fairly and lawfully.
- Data should only be obtained for specified purposes and should not be further processed in a manner incompatible with these purposes.
- Personal data should be adequate, relevant, and not excessive in relation to the purposes for which they were collected.
- Personal data should be accurate and where necessary kept up to date.
- Personal data should not be kept longer than is needed for its intended purpose.
- Personal data should be processed in accordance with the rights of the individual which the information concerns.
- Appropriate measures should be taken against unauthorised or unlawful processing or destruction of personal data.
Personal data should not be transferred outside the European Economic Area (the EU states plus Liechtenstein, Iceland and Norway).
|Link to Top
Domestic Violence, Crime and Victims Act 2004
The Domestic Violence, Crime and Victims Act 2004 (external link) closed a legal loophole by creating a new offence of causing or allowing the death of a child or vulnerable adult. The offence established a new criminal responsibility for members of a household where they know that a child or vulnerable adult is at significant risk of serious harm.
The Human Rights Act 1998
State intervention in children’s lives raises significant human rights issues under Article 8 and intervention will need to be in accordance with the law and proportionate.
- Article 2: The right to life
- Article 3: The right to not suffer from torture or inhuman or degrading treatment or punishment
- Article 4: The right to be kept safe from slavery
- Article 5: The right to be free and secure
- Article 6:·The right to a fair trial
- Article 7:·The right not to be punished for something you did that was not against the law when you did it
- Article 8:·The right to respect for your private and family life, home and correspondence
- Article 9: The right to think and believe what you like – this is called freedom of thought, conscience and religion
- Article 10: ·The right to say what you like – this is called freedom of expression
- Article 11:·The right to hang out with other people and share ideas – this is called freedom of peaceful assembly and association
- Article 12:·The right to get married and to have a family
- Article 14:·The right to enjoy all your Convention rights without discrimination
Sexual Offences Act 2003
The Sexual Offences Act 2003 (external link) was introduced to update the legislation relating to offences against children. It includes the offences of grooming, abuse of position of trust, trafficking, and covers offences committed by British citizens whilst abroad. It also updated the Sex Offenders Act 1997 to strengthen the monitoring of offenders on the sex offenders’ register.
Serious Organised Crime and Police Act 2005
The Serious Organised Crime and Police Act 2005 (external link) set up the framework for the Child Exploitation and Online Protection (CEOP) Centre to be created. It also included provisions for improving the vetting system to stop adults who pose a risk from working with children (Section 163).
Safeguarding Children and Safer Recruitment in Education 2006
- Duties for safeguarding and promoting the welfare of children in education
- Recruitment and selection processes
- Recruitment and vetting checks
- Dealing with allegations of abuse against teachers and other staff
Home Alone: No Legislation
There is no specific legislation in the UK that covers leaving children home alone, including:
- The minimum age at which a child might be left alone
- The minimum age of a babysitter
The NSPCC has produced a guidance leaflet called Home Alone (external link) to help parents decide about how, when and how long it is safe to leave their children at home alone.
Using the Criminal Law to Protect Children
Responsibility for the investigation of criminal offences rests with the police. The conduct of an investigation is regulated by the Police and Criminal Evidence Act 1984 and the Criminal Procedures and Investigations Act 1996 (external link).
The Criminal Justice Act 1988 (external link) provides that video-recorded interviews may be admitted as evidence in a criminal trial concerning certain sexual and violent offences. Videos are admissible in respect of the violent offences if at the time of making the video the child was under the age of 14 years; and for the sexual offences under the age of 17 years. Best practice in conducting such interviews is provided in guidance issued by the Home Office and Department of Health. Provision is also made for evidence to be given by video links and restrictions on cross-examination by defendants.
Agencies may be approached by either the prosecution or defence in criminal proceedings for access to records that are held about a child witness. These records will be confidential and legal advice should always be sought in such circumstances before any document is handed over.
The age of criminal responsibility in England and Wales is 10 years of age.