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The Legislative Framework: The Children Act 1989, The Children Act 2004

The Children Act 1989

Safeguarding and promoting the welfare of children

Section 17 of the Children Act 1989 places a general duty on every local authority:

  • 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.

Children who are suffering or are likely to suffer significant harm

Where a local authority –

are 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 (Children Act 1989 section 47(1)).

The duty to co-operate to safeguard and promote the welfare of children

The Children Act 1989 places two specific duties on agencies to co-operate in the interests of vulnerable children

Section 27 provides that a local authority may request help from:

  • any local authority;
  • any local education authority;
  • any local housing authority;
  • any health authority, Special Health Authority or National Health Service Trust; and
  • any person authorised by the National Assembly for Wales in exercising the local authority’s functions under Part III of the Act.

This part of the Act places a duty on local authorities to provide support and services for children in need, including children looked after by the local authority and those in secure accommodation. The body whose help is requested in these circumstances has a duty to comply with the request, provided it is compatible with its other duties and functions.

Section 47 places a duty on:

  • any local authority;
  • any local education authority; any housing authority;
  • any health authority, Special Health Authority or National Health Service Trust; and
  • any person authorised by the National Assembly for Wales to help a local authority with its enquiries in cases where there is reasonable cause to suspect that a child is suffering, or is likely to suffer, significant harm.

Meaning of “harm”

“Harm” is defined in section 31(9) of the Children Act 1989 as “ill-treatment or the impairment of health or development”. It is broader than physical violence and includes sexual abuse and forms of ill-treatment which are not physical. Any harm a child suffers because a parent is being harassed or intimidated is caught by the definition of “harm”. Section 120 of the Adoption and Children Act 2002 amends the definition of harm in the Children Act 1989 to “ill-treatment or the impairment of health or development including, for example, impairment suffered from seeing or hearing the ill-treatment of another”. The amendment applies to all proceedings where the court applies the ‘welfare checklist’ in section 1(3) of the Children Act 1989. This includes proceedings for contact or residence orders.

Children provided with accommodation by a health authority or local education authority

Under Section 85, where a child is provided with accommodation by any health authority or local education authority (“the accommodating authority”) –

for a consecutive period of at least three months; or

with the intention, on the part of that authority, of accommodating him for such a period,

the accommodating authority shall notify the responsible authority.

……the accommodating authority shall notify the responsible authority when they cease to accommodate the child.

……“the responsible authority” means-

the local authority appearing to the accommodating authority to be the authority within whose area the child was ordinarily resident immediately before being accommodated; or

where it appears to the accommodating authority that a child was not ordinarily resident within the area of any local authority, the local authority within whose area the accommodation is situated.

Where a local authority have been notified ……. they shall-

take such steps as reasonably practicable to enable them to determine whether the child’s welfare is adequately safeguarded and promoted while he is accommodated by the accommodating authority; and

consider the extent to which (if at all) they should exercise any of their functions under this Act with respect to the child.

Children provided with accommodation in a residential care home, nursing home or mental nursing home

Similarly, section 86 (1) of the Act requires that where a child is provided with accommodation in any residential care home, nursing home or mental nursing home:

(a) for a consecutive period of at least three months; or

(b) with the intention, on the part of the person taking the decision to accommodate him, of accommodating him for such period,

(c) the person carrying on the home shall notify the local authority within whose area the home is carried on.

  1. Where subsection (1) applies with respect to a child, the person carrying on the home shall also notify that authority when he ceases to accommodate the child in the home.
  2. Where a local authority have been notified under this section, they shall:

(a) take such steps as are reasonably practicable to enable them to determine whether the child’s welfare is adequately safeguarded and promoted while he is accommodated in the home; and

(b) consider the extent to which (if at all) they should exercise any of their functions under this Act with respect to the child.

Children provided with accommodation in an independent school

With regard to the welfare of children accommodated in independent schools, under section 87 (1) it is the duty of:

(a) the proprietor of an independent school which provides accommodation for any child; and

(b) any person who is not the proprietor of such a school but who is responsible for conducting it, to safeguard and promote the child’s welfare.

2. Subsection (1) does not apply in relation to a school which is a children’s home or a residential care home.

3. Where accommodation is provided for a child by an independent school within the area of a local authority, the authority shall take such steps as are reasonably practicable to enable them to determine whether the child’s welfare is adequately safeguarded and promoted while he is accommodated by the school.

The Children Act 2004

The Children Act 2004 builds on and strengthens the framework set out in the Children Act 1989 in a number of ways. There are a number of provisions in the 2004 Act which relate directly or indirectly to agencies’ responsibilities to safeguard and promote the welfare of children. These are set out below.

Section 25: Co-operation to improve well-being

The Welsh Assembly Government has adopted the UN Convention on the Rights of the Child as the basis of all its work for children and young people in Wales. The Convention rights have been translated into seven Core Aims through which the Assembly Government seeks to implement, to ensure that all children and young people:

  • have a flying start in life;
  • have a comprehensive range of education and learning opportunities;
  • enjoy the best possible health and are free from abuse, victimisation and exploitation;
  • have access to play, leisure, sporting and cultural activities;
  • are listened to, treated with respect, and have their race and cultural identity recognised;
  • have a safe home and a community which supports physical and emotional wellbeing; and
  • are not disadvantaged by poverty.

These aims are reflected in section 25 of the Children Act 2004 and together strengthen the arrangements for protecting and promoting the welfare of children and young people. For the first time, it places a duty on all local authorities in Wales (referred to in the Act as children’s services authorities) to make arrangements to promote co-operation with a view to improving the well being of children in their area, in relation to:

  • Physical and mental health and emotional well-being; Protection from harm and neglect;
  • Education, training and recreation;
  • The contribution made by them to society; and Social and economic well-being.

In fulfilling this duty a local authority is required to promote co-operation between itself and its partners, these being:

  • The police authority and the chief officer of police for a police area any part of which falls within the area of the local authority;
  • A local probation board for an area any part of which falls within the area of the authority;
  • A youth offending team for an area any part of which falls within the area of the authority;
  • A Local Health Board for an area any part of which falls within the area of the authority;
  • An NHS Trust providing services in the area of the authority; and
  • The National Council for Education and Training for Wales.

These partners are also placed under a statutory duty to co-operate with the local authority in making these arrangements.

Section 26: Children and young people’s plans

Section 26 provides for regulations which will require local authorities to prepare and publish a plan setting out their strategy for discharging their functions in relation to children and young people. The Children and Young People’s Plan will be a plan for local children’s services. It will include the arrangements for co-operation required under section 25 and will be consistent with the strategic plans of local partners covered by that duty. It will be prepared in consultation with children, young people, carers and families and all relevant local organisations including the Local Safeguarding Children Board.

Planning Guidance will be issued in 2007 with the first plans commencing in 2008.

Section 27: Responsibility for functions under sections 25 and 26

The Act requires key agencies to appoint senior officers with responsibility for their functions under sections 25 and 26.

Each local authority is required to appoint a Lead Director for children and young people’s services and to designate a lead member for children and young people’s services for the purposes of coordinating and overseeing arrangements under sections 25 and 26 of the Act. The Lead Director and Lead Member will provide, respectively, a professional and political focus for children’s services. They have three key roles:

  • responsibility for promoting partnership working both corporately across the local authority and, in recognition of its leadership role, between the authority and its partners;
  • providing leadership to drive change;
  • ensuring that the local authority implements the rights of children and young people.

Local Health Boards are required to appoint an Executive Director and designated non-officer Board Member and NHS Trusts will designate a Lead Executive and non-Executive Director to take overall responsibility for their respective arrangements for cooperation in the partnership planning process, mirroring the same three roles.

Section 28: Arrangements to safeguard and promote welfare

Section 28 of the 2004 Act also requires the following to make arrangements for ensuring that their functions are discharged having regard to the need to safeguard and promote the welfare of children:

  • A local authority;
  • A Local Health Board;
  • An NHS Trust all or most of whose hospitals, establishments and facilities are situated in Wales;
  • The police authority and chief officer of police for a police area in Wales;
  • The British Transport Police Authority, so far as exercising functions in relation to Wales;
  • A local probation board for an area in Wales; A youth offending team for an area in Wales;
  • The governor of a prison or secure training centre in Wales (or, in the case of a contracted out prison or secure training centre, its director); and
  • Any person to the extent that he is providing services pursuant to arrangements made by a local authority in Wales under section 123(1)(b) of the Learning and Skills Act 2000 (chapter 21) (youth support services).

Section 29: Information databases

Section 29 gives the Assembly the power to establish or to require local authorities to establish, maintain and operate a database of basic information on all children in the authority’s area or, if the duty to create a database or databases is placed on another body, to participate in its operation.

Section 30: Inspection of functions

This section makes provision for the functions of a children’s services authority in Wales to be subject to inspection by the Assembly.

Sections 31-34: Local safeguarding children boards

Under section 31 of the Act, Area Child Protection Committees are replaced by Local Safeguarding Children Boards. The Act specifies the following as statutory partners of a local authority who must be represented on each Safeguarding Board

  • The chief officer of police for a police area any part of which falls within the area of the local authority;
  • A local probation board for an area any part of which falls within the area of the authority;
  • A youth offending team for an area any part of which falls within the area of the authority;
  • A Local Health Board for an area any part of which falls within the area of the authority;
  • An NHS Trust providing services in the area of the authority;
  • The governor of any security training centre within the area of the authority (or, in the case of a contracted out secure training centre, its director); and
  • The governor of any prison in the area of the authority which ordinarily detains children (or, in the case of a contracted out prison, its director).

Section 32 of the Act defines the objective of a Local Safeguarding Children Board as:

  • to co-ordinate 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 authority by which it is established; and
  • to ensure the effectiveness of what is done by each such person or body for those purposes.
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