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1.7 Legal Framework for Child Protection


Contents

  Introduction
  The Children Act 1989
  The Crime and Disorder Act 1998 (as amended by the Anti-Social Behaviour Act 2003) and the Anti-Social Behaviour, Crime and Policing Act 2014
  The Human Rights Act 1998
  The Sexual Offences Act 2003 as amended by the Anti-Social Behaviour, Crime and Policing Act 2014
  Data Protection Act 1998
  Freedom of Information Act 2000
  Criminal Justice and Court Services Act 2000
  Education Act 2002
  Housing Act 1996
  The Children Act 2004
  Domestic Violence, Crime and Victims Act 2004
  Safeguarding Vulnerable Groups 2006 as amended by the Protection of Freedoms Act 2012
  Apprenticeship Skills, Children and Learning Act 2009
  Police Reform and Social Responsibility Act 2011


Introduction

1. This summary of current legislation is intended as a guide only. It is not a substitute for professional legal advice;
2. Professionals should seek advice from their own advisers about their professional responsibilities for Safeguarding and Promoting the Welfare of Children.


The Children Act 1989

3. The Children Act 1989 holds together in a single coherent legislative framework, the private and public law relating to children;
4. The Act aims to strike a balance between the rights of children to express their views on decisions made about their lives, the rights of parents to exercise their responsibilities towards the child and the duty of the State to intervene where the child's welfare requires it;
5. The Act rests on the belief that children are generally best looked after within the family with both parents playing a full part and without resort to legal proceedings;
6. The opening provisions of the Act set out the overarching welfare principles to be applied in all proceedings under the Act; the welfare of the child is the paramount consideration;
7. The Act also makes it clear that delay in Court proceedings is generally harmful to children not only because of the uncertainty it creates for them, but also because of the harm it does to the relationship between the parents and their capacity to co-operate with one another in future;

 

Children Act 1989: Local Authority Support for Children and Families

8.

Section 17 (1) of the Children Act 1989 states that:

It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part):

  • 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.
9.

Section 17(5) 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.


10.

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

  • S/he 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;
  • His/her health or development is likely to be significantly impaired, or further impaired, without the provision for him/her of such services; or
  • S/he is disabled.

and 'family', in relation to such a child, includes any person who has parental responsibility for the child and any other person with whom s/he has been living.

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.
11. Where a child is suspected to be suffering, or likely to suffer Significant Harm, Children's Social Care is required by Section 47 of the Act to make enquiries to enable the local authority to decide whether it should take any action to safeguard or promote the child's welfare.

 

Provision of Accommodation under section 20 Children Act 1989

12.

(This can be on the initiative of the local authority with the agreement of the parents, or at the request of the parents. Any person with parental responsibility can at any time remove the child from the accommodation.)

The child is a child in need who requires accommodation as a result of:

  • Having no person with parental responsibility for him/her; or
  • Being lost or abandoned; or
  • The person who has been caring for him/her being prevented (whether or not permanently, and for whatever reason) from providing him/her with suitable accommodation or care; or
  • Having reached the age of 16, his/her welfare is likely to be seriously prejudiced if he/she is not provided with accommodation; or
  • Accommodating the child would safeguard or promote his/her welfare (even though a person who has parental responsibility for him/her is able to provide him/her with accommodation), provided that that person does not object.
13.

Before providing accommodation, so far as is reasonably practicable and consistent with the child’s welfare:

  • Ascertain, and give due consideration to the child’s wishes and feelings (having regard to his/her age and understanding); and
  • Ascertain whether the parents/person(s) with parental responsibility have given a valid consent:
    • Does the parent have the mental capacity to consent?
    • Is the consent fully informed?
    • Is it fair and proportionate for the child to be accommodated?
 

Children Act 1989: Local Authority's Duty to Investigate

14.

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

47.(1) Where a local authority:

  • Is informed that a child who lives, or is found in their area;
  • Is the subject of an emergency protection order; or
  • Is in Police protection; or
  • 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.
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.
15. Where there is a risk to the life of a child or likelihood of serious immediate harm, an agency with statutory child protection powers (the Local Authority, the Police and the NSPCC) should act quickly to secure the immediate safety of the child.

 

Children Act 1989: Emergency Protection Orders

16.

The Court may make an Emergency Protection Order under s.44 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 provided by or on behalf of the applicant; or
  • He does not remain in the place in which he is then being accommodated.
17. An Emergency Protection Order may also be made if 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.
18. 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. The applicant Local Authority is granted PR in order to do only what is necessary to safeguard and promote the child's welfare.

 

Children Act 1989: Police Protection Powers

19.

Under s.46 of the Children Act 1989, where a Police Constable has reasonable cause to believe that a child would otherwise be likely to suffer significant harm, she/he may:

  • Remove the child to suitable accommodation and keep him or her there;
  • 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.

 

Exclusion Orders

20. There are a range of powers available under the Family Law Act 1996 which may allow a perpetrator to be removed from the home, instead of having to remove the child. These are private law proceedings and the person seeking to remain in the family home with the child would need to make the relevant application.
21.

The Court can include an exclusion requirement with an Interim Care Order or an Emergency Protection Order where it is 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; and
  • That another person living in the home (whether a parent of the child or some other person):
    1. Is able and willing to give the child the care which it would be reasonable to expect a parent to give; and
    2. Consents to the exclusion requirement.
 

Children Act 1989: Child Assessment Orders

22.

The Court may only grant a Child Assessment Order under Section 43 of the Children Act 1989 if:

  • The applicant has reasonable cause to suspect that the child is suffering, or likely to suffer, significant harm;
  • An assessment of the child is required to determine whether the child is suffering, or is likely to suffer, significant harm; and
  • It is unlikely that such an assessment will be made, or be satisfactory, in the absence of an order under this section.
23. A Child Assessment Order cannot be made where the Court is satisfied that here are grounds for making an Emergency Protection Order with respect to the child; and that it ought to make such an order rather than a Child Assessment Order.
24. Child Assessment Orders deal with the single issue of enabling an assessment of the child to be made where significant harm is suspected, and the parents or other persons responsible for him have refused to co-operate.
25. The Court has power to make an Emergency Protection Order instead of the Child Assessment Order if, it considers that the circumstances warrant this (section 43(4)).

 

Care and Supervision Orders

 

Sections 31 and 32 of the Children Act 1989

26. The Children Act 1989 introduced the concept of Significant Harm as the threshold that justifies compulsory intervention in family life in the best interests of children. The local authority is under a duty to make enquiries, or cause enquiries to be made, where it has reasonable cause to suspect that a child is suffering, or likely to suffer significant harm (Section 47).
27.

A Court may only make a Care Order (placing the child in the care of the local authority) or Supervision Order (putting the child under the supervision of a local authority) in respect of a child if it is satisfied that:

  • The child is suffering, or is likely to suffer, significant harm;
  • That the harm of likelihood of harm is attributed to a lack of adequate parental care or control (s.31);
  • S31(9) of the Children Act 1989.

'Harm' means ill-treatment of the impairment of health or development.

'Development' means physical, intellectual, emotional, social or behavioural development.

'Health' means physical or mental health.

'Ill-treatment' includes sexual abuse and forms of ill-treatment which are not physical.

 

S.31(10) of the Children Act 1989

28. Where the question of whether harm suffered by a child is significant turns on the child's health and development, his health or development shall be compared with that which could reasonably be expected of a similar child.
29.

Care and Supervision Proceedings are founded on a number of principles:

  • Compulsory intervention in the care and upbringing of a child will be possible only by Court Order following proceedings in which the child, his parents and others who are connected with the child will be able to participate fully. The proceedings should establish what action, if any, is in the child's interests, and the procedure should be as fair as possible to all concerned. The term 'care' is used in the Act in relation to a child subject to a Care Order and not to a child accommodated by a local authority under voluntary arrangements;
  • A Care or Supervision Order will be sought only when there appears to be no better way of safeguarding and promoting the welfare of the child suffering, or likely to suffer, significant harm. The local authority has a general duty to promote the upbringing of children in need by their families so far as this is consistent with its duty to promote children's welfare and to avoid the need for proceedings where possible. It should have regard to the Court's presumption against making an order in section 1(5) while at the same time giving paramount consideration to the child's welfare. This means that voluntary arrangements through the provision of services to the child and his family should always be fully explored. Where a Care Order or Supervision Order is the appropriate remedy because control of the child's circumstances is necessary to promote his welfare, applications in such proceedings should be part of a carefully planned process. Discharge and variation of Care and Supervision Orders may be sought;
  • There will be common grounds for making Care or Supervision Orders irrespective of the route by which cases proceed. These will need to address present or prospective harm to the child and how this is occurring or may occur. Factors such as failure to receive suitable education are not grounds in themselves for making a Care or Supervision Order except in so far as they contribute to the harm done and may be attributable to the parenting, or lack of proper parenting;
  • There will be greater emphasis on representing the views, feelings and needs of the child in these proceedings. Where a Children's Guardian is to be appointed, the appointment should be made by the Court as soon as possible after the application is received by the Court. Where an application for a Care or Supervision Order follows on from the making of an Emergency Protection Order or Child Assessment Order a Children's Guardian will usually already have been appointed;
  • When a Care Order is in force the local authority and parents share parental responsibility for the child subject to the authority's power to limit the exercise of such responsibility by the parents in order to safeguard the child's welfare, and to some specific limitations on the authority.
30. The Act also establishes a presumption of reasonable parental contact with children in care, subject to Court Orders and limited local authority action in emergencies.


The Crime and Disorder Act 1998 (as amended by the Anti-Social Behaviour Act 2003 and the Anti-Social Behaviour, Crime and Policing Act 2014)

31. The principal aim of the Crime and Disorder Act 1998 is to prevent offending so as to create safer communities.
32. The Act provides a range of new interventions and punishments to help local communities and youth agencies to take effective action to tackle youth crime. These include new powers to enable early, targeted intervention to deal with anti-social behaviour and divert the very young from crime. It emphasises that multi-agency partnerships are critical for the reduction of offending amongst children and young people.
33. The Act imposes a duty upon Local Authorities and the Police (including other public agencies) that in carrying out any of their functions they must have due regard to the likely effect of, and do all they reasonably can to prevent crime and disorder. In addition to the above, the Act created certain racially-aggravated offences, abolishes the rebuttable presumption that a child is incapable of telling the difference between serious wrong and simple naughtiness, ensuring that all juveniles are treated in the same way in criminal proceedings.
34.

The Crime and Disorder 1998 Act also created:

  • Child Safety Orders (S.11)
    • The aim of this order is to protect children, aged under 10 years, who are at risk of becoming involved in crime and may require a child to be at home at certain times or to stay away from certain places or people.
  • Police power to remove truants (S.16)
    • Enables a Police Officer to take truants back to school or other place designated by the local education authority. It is not a power or arrest or detention nor does it make truancy a criminal offence.
  • Parenting Orders (S.8)
    • Parenting Orders aim to support parents to control the behaviour of their children and will require parents to attend counselling/guidance sessions.
  • Youth Offending Teams (S.39)
    • Youth Offending Teams are mandatory multi-agency teams involving Social Workers, Probation and Police Officers as well as Health and Education staff who must deliver community-based intervention programmes to make young people face up to their offending behaviour. See Chapter 2: Roles and Responsibilities.
  • Youth Justice Board (S.41)
    • The Youth Justice Board is a non-Departmental public body, sponsored by the Home Office to oversee Youth Justice services in England and Wales, which came into operation in 1998.
 

Anti-Social Behaviour, Crime and Policing Act 2014

35.

Anti-Social Behaviour Injunctions can be granted against a person aged 10 or over, to prevent them engaging in anti-social behaviour. The injunction may include provisions requiring the young person to do specified things, and/or prohibiting them from doing specified things.

For under-18s, the injunction must be for a specified period of time, which must be no more than 12 months.

These injunctions replace the previous Anti-Social Behaviour Orders (ASBOs) under section 1 Crime and Disorder Act 1998.


The Human Rights Act 1998

36. The Human Rights Act 1998 came into force on 2 October 2000. It makes almost all the rights protected by the European Convention on Human Rights (ECHR) part of English law. Those rights, referred to and listed below as 'Convention Rights' protect fundamental rights and guard them from unlawful interference.
37. As a consequence of the Human Rights Act, local authorities and other public bodies need to ensure that their decisions and procedures do not infringe Convention Rights. In some circumstances, local authorities need to act positively to protect these rights. An understanding of the provisions of the Act and the ECHR is therefore, essential for many people and bodies responsible for devising and implementing public policy.
38.

Human Rights Act: The Convention Rights

  • The Convention Rights are as follows:
    • The right to life (Art 2);
    • Prohibition on inhuman and degrading treatment (Art 3);
    • No slavery or forced labour (Art 4);
    • No unjustified detention (Art 5);
    • The right to a fair hearing (Art 6);
    • No retrospective penalties for criminal offences (Art 7);
    • Right to respect for private and family life, the home and correspondence (Art 8);
    • Freedom of thought, conscience and religion (Art 9);
    • Freedom of expression (Art 10);
    • Freedom of assembly and association (Art 11);
    • The right to marry (Art 12);
    • No discrimination (Art 14);
    • Right to property (Art 1 of Protocol No 1);
    • Right to education (Art 2 of Protocol No 1);
    • Right to free elections (Art 3 of Protocol No 1);
    • No capital punishment (Fourth Protocol).
 

The Human Rights Act and Local Authorities

39. It is first necessary to understand the scheme of the Human Rights Act and how it applies to local authorities. The general principles of the Act are:
40. All law must be interpreted, so far as is possible, to comply with the Act. This applies to primary legislation, both future and past, unless it is so clearly worded that it is impossible to give it an interpretation consistent with the Act.
41. If courts cannot interpret primary legislation consistently with the Human Rights Act, they can declare that it is incompatible with the Act. The legislation can then be amended, either by way of remedial order or by Act of Parliament. However, until this is done, a declaration of incompatibility does not affect the ongoing validity of the legislation in question.
42. Subordinate legislation, such as a statutory instrument, must be interpreted to comply with the Act unless its parent primary legislation prevents it being read compatibly.
43. It is unlawful for public authorities to act in a way which is incompatible with the Act.
44.

As they are 'public authorities' for the purposes of the Act, local authorities will be subject to it in two principal ways:

  • They must interpret and give effect to all law in a way that is consistent with the Human Rights Act. This means that, so far as it is possible to do so, Acts of parliament must be read and given effect in a way that is consistent with the Human Rights Act. Secondary legislation, such as Regulations or Orders, must be read and given effect in a way that is consistent with the Human Rights Act unless the parent legislation prevents such an interpretation;
  • It will usually be unlawful for a local authority to act incompatibly with the Convention Rights protected by the Human Rights Act. The only exception is where the clear words of an Act of Parliament give the local authority no alternative but to act in a way which will infringe any of those rights. Those occasions will be rare.
 

Human Rights Act: Application of the Convention in Respect of Childcare Decisions

45. Decisions that local authorities have to take concerning children and their care can be amongst the most difficult and emotive decisions an authority is called to take. The issues raised are capable of affecting the most fundamental of human interests, namely the relationship between parents and their children.

 

Human Rights Act: the Relevant Provisions of the Convention

46. There are two provisions of the Convention which might be said to be relevant: Article 6 on the right to a fair trial and Article 8 on the right to respect for private and family life.
47.

Article 8 provides:

  • Everyone has the right to respect for his private and family life, his home and his correspondence.
    • There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society for the protection of health or morals, or for the protection of the rights and freedoms of others;
    • The relevance of the provision of the Convention is that it is unlawful for a public authority to act in a way which is incompatible with a 'Convention Right'. By s7, a 'victim' of an act, committed by a public authority, which is alleged to be incompatible with a Convention Right may bring proceedings against the authority on that ground. Further, an aggrieved victim would be likely to rely on an alleged breach of Convention Rights in addition to other grounds of challenge.
 

Human Rights Act: Decisions of Local Authorities which are likely to Raise Convention Rights

48.

In the context of decisions about childcare, there will no doubt be many occasions when aggrieved parties invoke the Convention. Without being able to provide a comprehensive review of every case in which Convention Rights may play a part, four specific areas in which it seems likely that a party may seek to rely on a Convention Right are as follows:

  • Applications by authorities for Care Orders;
  • Applications by authorities for Child Assessment Orders;
  • Applications by authorities for Emergency Protection Orders;
  • Decisions that a child shall be subject to a Child Protection Plan.
49. The requirements of the relevant Convention Rights are in the context of these four areas.


The Sexual Offences Act 2003, as amended by the Anti-Social Behaviour, Crime and Policing Act 2014

50. The Sexual Offences Act 2003 came into force in May 2004. The Act is split into two parts the first devoted to sexual offences, creating new offences and widening the scope of existing ones, and the second covering offenders with an emphasis on the protection of vulnerable individuals. It provides clear and coherent sex offences to protect individuals from abuse and exploitation, and is designed to be fair and non-discriminatory.

 

Sexual Offences Act: Child Sex Abuse

51. The Act closes a loophole that has allowed those accused of child rape to escape proper punishment by arguing that they consented. Any sexual intercourse with a child under 13 will be treated as rape. The other non-consensual offences against children under 13 are sexual assault by penetration, sexual assault and causing or inciting a child to engage in sexual activity.
52. There are new offences of adult sexual activity with a child under 16. These cover a range of behaviour, involving both physical and non-physical contact. But where the child is under 13 and the behaviour involves physical contact or inducing a child to perform a sexual act, the adult will be charged with a non-consensual offence. As children and young people commit sexual crimes on other children, these offences apply not only to adults but also to persons under 18.

 

Sexual Offences Act: Prosecutions of Persons under 18

53. The age of consent is 16. Children can and do abuse and exploit other children. Therefore, the Act makes it an offence for children under 16 to engage in sexual activity in order to protect those children who are victims of abuse and exploitation.
54. However, just as children were highly unlikely to be prosecuted under the previous law, children of the same or similar age are highly unlikely to be prosecuted for engaging in sexual activity, where the activity is mutually agreed and there is no abuse or exploitation.

 

Sexual Offences Act: How the Law Affects those who Advise Children

55. A person does not commit an offence of aiding or abetting a child sex offence if they give advice to children in order to protect them from sexually transmitted infection, protecting their physical safety, preventing them from becoming pregnant, or promoting their emotional well-being. This means that parents, doctors, other health professionals, in fact any one can provide sexual health advice to children whose only motivation in doing so is the protection of the child. However, any person who causes or encourages the child to engage in the activity or if they do it to obtain sexual gratification will be liable to prosecution.

 

Sexual Offences Act: Abusive Parents and Carers

56. There are offences of familial child sex offences that cover not only assaults by blood relatives but also foster and adoptive parents and live-in partners. The offences of abuse of a position of trust have been amended and re-enacted, prohibiting sexual contact between adults and children under 18 in schools and colleges and residential care, in order to protect vulnerable 16 and 17 year olds.

 

Sexual Offence Act: Sexual Offences involving the Internet, and 'Grooming'

57.

It is acknowledged that sexual approaches to children on-line are increasing. To combat this there is a new offence of meeting a child following sexual grooming, which makes it a crime to befriend a child on the internet or by other means and meets or intends to meet the child with the intention of abusing them. The maximum sentence is 10 years imprisonment.

A new civil preventative order, the Sexual Risk Order, may be imposed which will prohibit adults from engaging in inappropriate behaviour such as sexual conversations with children on-line.

 

Sexual Offences Act: Monitoring Convicted Sex Offenders

58. The Act makes the notification requirements for sex offenders stronger and easier to enforce. Convicted sex offenders will have to report each year to their local Police regardless of whether their circumstances have changed. They will have to inform the Police if they change their name or address within three days instead of the previous fourteen days, and disclose if they spend seven days or more away from home. They will also have to supply their national insurance number. Failure to report is still a criminal offence that carries a prison term of up to five years.
59. The Act also extends the requirements to cover violent offenders. This will allow Sex Offender Preventative Orders to be imposed on anyone convicted of a serious violent offence if there is evidence that they pose a risk of causing serious sexual harm.
60. The Act provides for "sex tourists" convicted of sex crimes abroad to comply with the notification requirements. In addition, there is a new foreign travel banning order that will enable courts in certain circumstances, to prohibit those convicted of a sexual offence against a child under 16 from travelling abroad.
61. The Act also provides for the Police to apply for a Sexual Risk Order against any person thought to pose a risk to children under 16.

 

Sexual Offences: Other Offences

62. There are offences against trafficking persons into, within and out of the country for the purposes of sexual exploitation. There are offences to prevent children from being abused through prostitution/sexual expolitation and pornography. They cover a range of activity including: buying the sexual services of a child, causing or encouraging child prostitution/sexual expolitation or pornography, arranging or facilitating child prostitution/sexual expolitation or pornography, and controlling any of the activities of a child involved in prostitution/sexual expolitation or pornography.

 

Sexual Harm Prevention Orders and Sexual Risk Orders

 

These orders were introduced by the Anti-Social Behaviour, Crime and Policing Act 2014. They replace the previous Sexual Offences Prevention Order, Risk of Sexual Harm Orders and Foreign Travel Orders which were introduced by the Sexual Offences Act 2003.

The court needs to be satisfied that the order is necessary for protecting the public, or any particular members of the public, from sexual harm from the defendant; or protecting children or vulnerable adults generally, or any particular children or vulnerable adults. from sexual harm from the defendant outside the United Kingdom.

The Orders prohibit the defendant from doing anything described in the order, and can include a prohibition on foreign travel (replacing Foreign Travel Orders which were introduced by the Sexual Offences Act 2003).

Failure to comply with a requirement imposed under an Order is an offence punishable by a fine and/or imprisonment.

Sexual Harm Prevention Orders

Sexual Harm Prevention Orders can be applied to anyone convicted or cautioned of a sexual or violent offence, including where offences are committed overseas. They replace the previous Sexual Offences Prevention Orders.

A prohibition contained in a Sexual Harm Prevention Order has effect for a fixed period, specified in the order, of at least 5 years, or until further order. The Order may specify different periods for different prohibitions.

Sexual Risk Orders

Sexual Risk Orders can be made where a person has done an act of a sexual nature as a result of which there is reasonable cause to believe that it is necessary for such an order to be made, even if they have never been convicted. They replace the previous Risk of Sexual Harm Orders.

A prohibition contained in a Sexual Risk Order has effect for a fixed period, specified in the order, of not less than 2 years, or until further order. The Order may specify different periods for different prohibitions.


Data Protection Act 1998

63. The Data Protection Act is about human rights, and specifically the right to privacy. The Data Protection Act 1998, Human Rights Act 1998 and the Freedom of Information legislation are interlinked. For more information, see Information Sharing & Confidentiality Procedure.
64. The legislation is intended to help maintain a fair balance between the rights and interests of individuals, in particular between the freedom to process information on the one hand and rights of privacy on the other.
65. The Information Commissioner, an independent officer who reports directly to Parliament, administers the Data Protection Act and the Freedom of Information Act 2000.
66.

There are eight principles put in place by the Data Protection Act 1998 to make sure that information is handled properly. These principles state that data must be:

  • Fairly and lawfully processed;
  • Processed for limited purposes;
  • Adequate;
  • Relevant and not excessive;
  • Accurate;
  • Not kept for longer than is necessary;
  • Processed in line with your rights;
  • Secure and not transferred to countries without adequate protection.
67. By law data controllers have to keep to these principles.


Freedom of Information Act 2000

68. The Freedom of Information Act 2000 gives people a general right of access to information held by or on behalf of public authorities. It is intended to promote a culture of openness and accountability amongst public sector bodies, and therefore to facilitate better public understanding of how public authorities carry out their duties, why they make the decisions they do, and how they spend public money.
69. The Information Commissioner is an independent official appointed by the Crown to oversee the Data Protection Act 1998 and the Freedom of Information Act 2000. The Commissioner reports annually to Parliament. The Commissioner's decisions are subject to the supervision of the Courts and the Information Tribunal.


Criminal Justice and Court Services Act 2000

70. This Act gives CAFCASS (under Section 12(1) a duty to safeguard and promote the welfare of children involved in family proceedings in which their welfare is or may be in question.


Education Act 2002

71. 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.
72. The same duty is put on independent schools, including academies/free schools, by Regulations made under section 157 of that Act.


Housing Act 1996

73. Under Section 213A of the Housing Act 1996 (inserted by section 12 of the Homelessness Act 2002), section 12 (which inserts section 213A of the Housing Act 1996), housing authorities are required to refer to adult social care services 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 advice and assistance in this, and the housing authority must give reasonable advice and assistance.


The Children Act 2004

74. The Children Act 2004 provides a legislative spine for the wider strategy for improving children's lives. It covers the universal services which every child accesses, and more targeted services for those with additional needs.
75. The overall aim is to encourage integrated planning, commissioning and delivery of services as well as improve multi-disciplinary working, remove duplication, increase accountability and improve the coordination of individual and joint inspections in local authorities. The legislation is enabling rather than prescriptive and provides local authorities with a considerable amount of flexibility in the way they implement its provisions.

 

Children Act 2004: Safeguarding and Promoting Welfare

76. Section 11 of the Children Act 2004 places a statutory duty on specified agencies to make arrangements to ensure that they have regard to the need to safeguard and promote the welfare of children in exercising their functions.
77. Under section 55 of the Borders, Citizenship and Immigration Act 2009, the Secretary of State (in practice, UK Visas and Immigration) 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.
78. 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.
79.

Section 14 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.
80. Section 14B (inserted by section 8 of the Children, Schools and Families Act 2010) provides that, if certain conditions are met, a person or body must supply information to a LSCB in England at its request. Firstly, the information must be requested for the purpose of enabling or assisting the LSCB to perform its functions. Secondly, the person or body requested to supply the information must have functions or engage in activities such that the LSCB considers it likely to have information relevant to a function of the LSCB. This would potentially encompass, for instance, a GP who provided medical advice or treatment to a child in respect of whom a LSCB was carrying out a serious case review, or to a family member or carer of that child. It would also potentially encompass a person carrying out voluntary work that brought him or her into contact with such a child or with a family member or carer, or a minister of a church attended by such a child or by a family member or carer. Finally, one of the conditions set out in subsection (4) or subsection (5) of the section must be met. Subsection (4) relates to the content of the information that may be requested. Subsection (5) effectively enables the onward transmission to a LSCB of information that it has previously requested, under the new section, to be supplied to a third party, for instance to a Clinical Commissioning Group, for collation and onward transmission to the LSCB. (But a LSCB may request that information be supplied to a third party for collation and onward transmission only if the third party itself is within subsection (3).) Subsection (6) provides that a LSCB may use information provided under section 14B only for the purposes of its functions.


Domestic Violence, Crime and Victims Act 2004

81.

There is no statutory offence of domestic violence. Domestic Violence is a general term to describe a range of behaviour. The Government definition of domestic violence is:

'Any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality'. This can encompass, but is not limited to, the following types of abuse:

  • Psychological;
  • Physical;
  • Sexual;
  • Financial;
  • Emotional.

‘Controlling behaviour’ is: a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.

‘Coercive behaviour’ is: an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim.'

The  definition includes so called 'honour’ based violence, female genital mutilation (FGM) and forced marriage, and is clear that victims are not confined to one gender or ethnic group.
82.

Measures in the Domestic Violence, Crime and Victims Act 2004 include:

  • Significant Police powers to deal with domestic violence including making it an arrestable, criminal offence to breach a non-molestation order, with a penalty of up to five years in prison;
  • Making common assault an arrestable offence;
  • Stronger legal protection for victims by extending the use of restraining orders - giving courts the power to impose a restraining order where the defendant has been acquitted but the court believes an order is necessary to protect the victim from harassment;
  • Providing Standards of Proficiency, binding on all criminal justice agencies, so that all victims receive the support, protection, information and advice they need;
  • Allowing victims to take their case to the Parliamentary Ombudsman if they felt the Code had not been adhered to by the criminal justice agencies;
  • Setting up an independent commissioner for victims to give victims a powerful voice at the heart of Government and to safeguard and promote the interests of victims and witnesses, encouraging the spread of good practice and reviewing the statutory code;
  • Amending the Protection from Harassment Act 1997 to ensure that victims have their say if an application is made to vary or terminate a restraining order that is protecting them from abuse or harassment;
  • Strengthening the civil law on domestic violence so that cohabiting same-sex couples have the same protection as heterosexual couples, and extending the availability of non-molestation orders to couples who have never lived together or have never been married.


Safeguarding Vulnerable Groups 2006, as amended by the Protection of Freedoms Act 2012

 

The Vetting and Barring Scheme

83.

The Vetting and Barring Scheme (VBS) aims to ensure that unsuitable people do not work with children, whether in paid employment or on a voluntary basis.

The Protection of Freedoms Act 2012 introduced a revised Vetting and Barring scheme.

The scheme includes:

  • Two barred lists maintained by the Disclosure and Barring Service. One list comprises persons barred from working with children and the other is for persons barred with working with Vulnerable Adults;
  • A person who is barred from working with children or Vulnerable Adults will be breaking the law if they work or volunteer, or try to work or volunteer with those groups;
  • An organisation which knowingly employs someone who is barred to work with those groups will also be breaking the law.
If your organisation works with children or Vulnerable Adults and you dismiss a member of staff or a volunteer because they have harmed a child or Vulnerable Adult, or you would have done so if they had not left, you must tell the Disclosure and Barring Service.
84. The Vetting and Barring Service aims to help employers make safer recruitment decisions by identifying candidates who may be unsuitable for certain types of work, by way of criminal records checks. These can be standard or enhanced disclosure depending on the duties of a particular position or job. In addition to information about a person's criminal record, an enhanced disclosure contain details of whether a person is recorded as barred from working with children or Adults at Risk; this is not so with a standard disclosure.
85.

The Disclosure and Barring Service Update Service allows individuals (if they choose to subscribe to it, and pay a small fee) to apply for a criminal record check once and then, if they need a similar sort of check again, to reuse their existing certificate, with their organisation checking online to see if it is still up to date, to avoid many  repeat applications.

See also the Disclosure and Barring Service website.


Apprenticeship Skills, Children and Learning Act 2009

86. This Act requires LSCBs to practice and publish an annual report on the effectiveness of safeguarding in the local area.


Police Reform and Social Responsibility Act 2011

87. 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.

End