Child Protection Law in England and Wales

Introduction

Child protection law in England and Wales provides the legal framework for the intervention of the state to protect children from significant harm. The Children Act 1989 (CA 1989), Part IV, sets out the grounds and procedures for care and supervision orders, emergency protection orders, and other orders that may be made to protect children from harm. The Act balances the need to protect children against the rights of parents to family life under Article 8 of the European Convention on Human Rights.

Care and Supervision Orders

Section 31 of the CA 1989 empowers the court to make a care order (placing the child in the care of the local authority) or a supervision order (placing the child under the supervision of the local authority). A care or supervision order may be made only where the court is satisfied that the threshold criteria are met.

The threshold criteria under section 31(2) require that the child is suffering or is likely to suffer significant harm and that the harm or likelihood of harm is attributable to the care given to the child (or likely to be given to the child) not being what it would be reasonable to expect a parent to give, or the child being beyond parental control.

Harm is defined by section 31(9) as ill-treatment or the impairment of health or development, including impairment suffered from seeing or hearing the ill-treatment of another (domestic violence). Development means physical, intellectual, emotional, social, or behavioural development, and health means physical or mental health. Ill-treatment includes sexual abuse and forms of ill-treatment that are not physical.

The standard of proof for the threshold criteria is the balance of probabilities, as confirmed by the House of Lords in Re B (Children) (Care Proceedings: Standard of Proof) (2008). The court must be satisfied that the harm or likelihood of harm is proved on the balance of probabilities.

The Care Plan

Where the court makes a care order, the local authority must prepare a care plan setting out the arrangements for the child’s care, including: the placement of the child (with parents, with relatives, in foster care, or in a residential care home); the arrangements for contact with the family; the provision of services to meet the child’s needs; and the long-term plans for the child (including the possibility of adoption).

The care plan is approved by the court before the care order is made. In Re S (Minors) (Care Order: Implementation of Care Plan) (2002), the House of Lords held that the court may not retain supervisory jurisdiction over the implementation of the care plan, but that the local authority must act compatibly with the Article 8 rights of the child and the family.

Emergency Protection Orders

Section 44 of the CA 1989 enables the court to make an emergency protection order (EPO) where there is reasonable cause to believe that the child is likely to suffer significant harm if the child is not removed to accommodation provided by the applicant (typically the local authority) or if the child does not remain in the place where they are then being accommodated.

An EPO lasts for a maximum of eight days, extendable by a further seven days in exceptional circumstances. The EPO gives the applicant parental responsibility for the child and may include directions for the child’s medical examination, the disclosure of information about the child’s whereabouts, and the production of the child.

Child Assessment Orders

Section 43 of the CA 1989 enables the court to make a child assessment order where there is reasonable cause to suspect that the child is suffering or is likely to suffer significant harm, but an emergency protection order is not necessary because the child can be assessed without removal from the family.

The child assessment order requires the child’s parents to produce the child for assessment (typically a medical or psychiatric assessment) and enables the assessor to examine the child. The order lasts for a maximum of seven days.

Police Protection

Section 46 of the CA 1989 empowers a police officer to remove a child to suitable accommodation or to prevent the child’s removal from a hospital or other place where the child is being accommodated, where the officer has reasonable cause to believe that the child would otherwise be likely to suffer significant harm. The police protection lasts for a maximum of 72 hours, during which the local authority must make arrangements for the child’s care and consider whether to apply for an EPO.

Adoption

Adoption is the legal process by which parental responsibility for a child is transferred from the birth parents to the adoptive parents. The Adoption and Children Act 2002 governs adoption in England and Wales, providing that the court may make an adoption order only where it is satisfied that the child’s welfare requires the making of the order and that the parents have consented or that their consent should be dispensed with.

The court may dispense with parental consent only where the child’s welfare requires it. In Re B (A Child) (Adoption: Natural Parent) (2013), the Supreme Court held that an adoption order should be made only where nothing else will do — where the child cannot be cared for by the birth parents or extended family and adoption is the only way of providing the child with a stable, loving home.

Contact with the Family

Where a child is in care, the local authority must promote reasonable contact between the child and their parents, relatives, and friends. The court may make orders for contact under section 34 of the CA 1989, and the local authority may apply to the court to terminate contact in certain circumstances.

The European Court of Human Rights has emphasised in cases such as Johansen v Norway (1996) that any restrictions on contact between a child in care and their parents must be justified by compelling reasons and must be proportionate.

Conclusion

Child protection law under the Children Act 1989 provides a structured framework for state intervention to protect children from significant harm. The threshold criteria ensure that intervention is based on evidence of harm or likelihood of harm, the care plan ensures that children in care have a clear plan for their future, and the provisions for emergency protection enable swift action where necessary. The law must be applied compatibly with the family’s rights under Article 8 of the European Convention.