Chapter 7 Outline answers to essay questions

The Children Act - the public law

Does the Children Act 1989 adequately balance the need for local authorities to investigate abuse and remove children from the risk of harm, against the rights of parents and children to respect for their private and family life under Article 8 ECHR?

Your answer should focus on when it is legitimate for a local authority to interfere with rights to private and family life. Will the rights of parents and the rights of their children always be the same?

Explain the range of powers available to the local authority under the Children Act 1989 in relation to children in need.

-s 17 duty to safeguard

-s 20 to provide accommodation

-s 47 to investigate the welfare of children in certain circumstances.

Describe the types of orders available, in particular care orders, supervision orders, child assessment orders and emergency protection orders. Comment on the difficulties faced by social workers when making decisions about whether to remove a child from their home and the consequences of the wrong decision, e.g. Baby P and the Cleveland cases. Refer to the case of Re S(Minors) (2010). Comment on the many recommendations for the reform of the child protection system – e.g. Every Child Matters and the subsequent Children Act 2004. Are there too many unnecessary targets? Does this impede the real issue – the protection of the child? Comment on the recommendations made in the Munro report – May 2011. Are targets a legitimate reason to interfere with article 8 rights and, if so, parents rights or children’s rights?

Also comment on the provision in The Children and Families Act 2014 to complete cases within 26 weeks. Is this achievable in complex cases or where parents are recovering from drink or drug addiction?

Also refer to Bainham’s article – Striking the Balance in Child Protection (2009), Cambridge Law Journal, vol 68, pp42-45, which makes the point that children under suspicion of harm cannot be removed from home unless there is actual proof. Supervision orders also require the threshold criteria to be satisfied. Is this a legitimate reason to interfere with article 8 rights and, if so, whose? Comment on Bainham’s suggestion for reform.

Talk about the impact that the Human Rights Act 1998 has had on care proceedings. How do the courts balance the rights of the child against the rights of the parents? A fair balance must be struck - refer to P,C and S v United Kingdom [2002] and Re H (Care Plan:Human Rights) [2011] EWCA Civ 1009. Also Haase v Germany (App n. 11057/02) [2004] 2 FLR 39.

However note in Yousef v Netherlands [2003] it was of the parents. Have the courts struck the correct balance?