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Child Care and Protection: Law and Practice 7th edition

Safda Mahmood, Julie Doughty

ISBN13: 9780854903061

Previous Edition ISBN: 9780854902682

Published: September 2024

Publisher: Wildy, Simmonds and Hill Publishing

Country of Publication: UK

Format: Paperback

Price: £45.00

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"I would thoroughly recommend it as a readable and practical tool to assist the busy practitioner"

Family Law review of the previous edition

The new edition of this popular title has been extensively updated to provide a practical guide to the complexities of the Children Act 1989 and subsequent child protection legislation, guidance and case law. Among the developments included in this edition are:

- the changes brought about by the Public Law Outline in January 2023 to family justice, particularly in relation to expert evidence, time limits, care plans and delay;

- the law surrounding deprivation of liberty as it relates to children, regarding the interface between care proceedings and Article 5 ECHR, and consideration of key case law, such as Re T (A Child) [2021] UKSC 35;

- the revision of Practice Directions, such as PD12A (Care and Supervision Proceedings and other Part 4 Proceedings: Guide to Case Management), Child Arrangements Programme (PD 12(B), and Revised PD12J – Domestic Abuse and Child Arrangements, Pilot Reporting and Private Law Review;

- significant case law developments in children law since publication of the last edition; and

- the revised edition of Working Together to Safeguard Children (2023), which has changed the position in relation to safeguarding and child death reviews, as well as assessments.

Subjects:: Family Law, Wildy, Simmonds and Hill, Social Work, Children

Contents:: Preface; Acknowledgements; List of Abbreviations; List of Figures and Tables; 1. Glossary and Legislative Framework; 1.1 Glossary of basic definitions; 1.2 Orders available under the Children Act 1989; 1.3 Introduction to the Children Act 1989; 1.4 Changes to the Children Act 1989 introduced with the Family Court in 2014; 2. Principles Underlying the Children Act 1989; 2.1 Paramountcy of the welfare of the child; 2.1.1 Welfare checklist; 2.2 Delay is deemed prejudicial to child’s interests (the impact of the Public Law Outline); 2.3 No order unless necessary in the interests of the child; 3. Parental Responsibility; 3.1 Definition, powers and duties of parental responsibility; 3.1.1 Duration; 3.1.2 Parental responsibility and medical consent:; Young people aged 16 and over; Children aged under 16; 3.1.3 What if there is no one with parental responsibility?; 3.2 Legal position of child’s birth mother; 3.3 Legal position of child’s father; 3.3.1 Married fathers and those who are civil partners; 3.3.2 Unmarried fathers; 3.4 Acquisition and loss of parental responsibility by child’s birth father; 3.4.1 Parental responsibility order; 3.4.2 Parental responsibility agreement with the mother; 3.4.3 Joint registration of the birth by father and mother; 3.4.4 Child arrangements order, specifying living with, and parental responsibility; 3.5 Acquisition of parental responsibility by others; 3.5.1 Relatives; 3.5.2 Step-parents; 3.5.3 Non-relatives; 3.5.4 Guardianship; 3.5.5 Special guardianship order; 3.5.6 Parental responsibility, surrogacy and; the Human Fertilisation and Embryology Act 2008; 3.5.7 Parental orders under section 54 of the Human Fertilisation and Embryology; Act 2008; 3.6 Public funding in children cases; 3.6.1 Public funding changes; 4 Every Child Matters: Child Protection Procedures in Health and Social Work; 4.1 Safeguarding partners, child safeguarding practice reviews, child practice reviews and child death review partners; 4.1.1 Safeguarding partners and child safeguarding practice reviews; 4.1.2 Child death review partners; 4.1.3 Child practice reviews; 4.2 Hierarchy within social services departments; 4.3 Referral procedures and preliminary investigations; 4.3.1 Involving the child; 4.3.2 Involving families and information sharing; 4.4 Child protection conferences; 4.4.1 Purpose; 4.4.2 Who should be invited to a child protection conference?; 4.4.3 Documents; 4.4.4 Decisions to be made and actions to be taken; 4.4.5 Categories of abuse; Emotional abuse; Neglect; Physical injury; Sexual abuse; 4.4.6 Criteria for discontinuance of the child protection plan; 4.5 Assessment of risk; 4.6 Child protection plan; 4.7 Child and Family Court Advisory Support Service; 4.8 Local authority duty to promote welfare of children in its area; 4.8.1 Duty to investigate potential or actual harm to child; 4.8.2 Local authority duty to children in need; 4.8.3 Services for children and their families; 4.8.4 Duty to children aged under 5; 4.8.5 Compliance with court order to investigate child’s circumstances, section 37 of the Children Act 1989; 4.8.6 Looked after children: responsibility of the local authority; 5 Emergency Protection Orders; 5.1 Effects of order; 5.2 Duration; 5.3 Grounds for application; 5.4 Practice and procedure; 5.4.1 Application; 5.4.2 Respondents; 5.4.3 Applications made without notice (previously referred to as ex parte applications); 5.4.4 Notice; 5.4.5 Service; 5.4.6 Attendance; 5.5 Contact, accommodation and the rights of the child; 5.5.1 Contact; 5.5.2 Accommodation; 5.5.3 Rights of the child; 5.6 Variation and discharge; 5.7 Exclusion requirement under emergency protection order; 5.7.1 Two notes of caution; 5.8 How do ‘without notice’ orders and Article 6 of the ECHR fit together?; 5.9 Emergency applications and newborn children; 5.9.1 Out of hours emergency protection order applications; 6 Child Assessment Orders; 6.1 Effects of order; 6.2 Grounds for application; 6.3 Practice and procedure; 6.3.1 Application; 6.3.2 Venue; 6.3.3 Respondents; 6.3.4 Notice; 6.3.5 Service; 6.3.6 Generally; 6.3.7 Discharge of order; 6.4 Contact, accommodation and the rights of; the child; 6.4.1 Contact; 6.4.2 Accommodation; 6.4.3 Rights of the child; 6.5 Appeals, variation and discharge; 7 Care and Supervision Proceedings; 7.1 Care order – definitions; 7.2 Grounds for application for a care or supervision order; 7.3 Significant harm; 7.3.1 Standard of proof; 7.3.2 Linking harm or likelihood of harm to the facts and test for separation; 7.4 Practice and procedure; 7.4.1 Applicants and public funding; 7.4.2 Venue; 7.4.3 Form; 7.4.4 Respondents; 7.4.5 Notice and court actions on issue; 7.4.6 Service; 7.4.7 Attendance; 7.5 Interim orders; 7.6 Effects of care order; 7.6.1 Duration; 7.6.2 Parental responsibility and care plans; 7.6.3 Proportionality, kinship care and local authority accommodation of the child; 7.6.4 Planning transition to adulthood; 7.6.5 Contact with a child in care; 7.6.6 Rights of the child in care proceedings and under a care order; 7.6.7 Rights of parents of a child in care; 7.7 Public Law Outline – principles, ‘fact-finding hearings’, issues resolution, interim and final hearings; 7.7.1 Main principles of the Public Law Outline (Practice Direction 12A); 7.7.2 Various parts of Practice Direction 12A; 7.7.3 Fact-finding hearings/split hearings; 7.7.4 Practice Direction 12A checklists; Pre-proceedings checklist; Stage 1 issue and allocation; Stage 2 advocates meeting and case management hearing; Stage 3 advocates meeting and issues resolution hearing; Stage 4 final hearing (if necessary); 7.8 Assessments and care planning; 7.9 Effects of supervision order; 7.9.1 Interim orders; 7.9.2 Duration of care and supervision; 7.9.3 Directions in supervision orders; Directions to the child; Directions to a ‘responsible person’; 7.9.4 Enforcement; 7.9.5 Designated local authority; 7.10 Removal of child from care; 7.11 Variation, discharge and appeals; 7.11.1 Variation and discharge; Applicant; Notice; Respondents; 7.11.2 Appeals; 7.12 Effects of the Human Rights Act 1998 on care and supervision proceedings; 8 Secure Accommodation and Deprivation of Liberty Orders; 8.1 Restricting liberty with a secure accommodation order; 8.1.1 Safeguards; 8.1.2 Criminal cases (secure orders); 8.1.3 Use of secure accommodation in civil cases; 8.2 How long can a child be kept in secure accommodation?; 8.2.1 Where no court order made; 8.2.2 Secure order (child on remand in a criminal case); 8.2.3 Civil cases and children not on criminal remand – secure accommodation orders; 8.2.4 Adjournments; 8.3 Grounds for application; 8.3.1 Children detained in criminal cases; 8.3.2 Children in civil cases; 8.3.3 Deprivation of liberty and secure accommodation; 8.3.4 Welfare of the child and secure accommodation; 8.4 Practice and procedure; 8.4.1 Application; 8.4.2 Forms; 8.4.3 Venue; 8.4.4 Respondents; 8.4.5 Notice; 8.4.6 Service; 8.5 Role of the children’s guardian; 8.6 Contact; 8.7 Rights of the child; 8.7.1 Reviews; 8.7.2 Attendance at court; 8.7.3 Public funding; 8.7.4 Right to legal advice; 8.7.5 Age of child; 8.8 Appeals and the Human Rights Act 1998; 8.9 Deprivation of liberty orders; 8.9.1 What constitutes a deprivation of liberty?; 8.9.2 Applications for a deprivation of liberty order and the National DoL List; 8.9.3 Use of the inherent jurisdiction and position surrounding the child’s consent; 8.9.4 Court of Protection and deprivation of liberty applications; 8.9.5 Shortage of placements and ongoing difficulties; 8.9.6 Deprivation of liberty orders and enforceability in Scotland; 8.9.7 Unregistered placements and supported placements; 9 Education Supervision Orders; 9.1 Effects of an education supervision order; 9.2 Duration; 9.3 Grounds for application; 9.4 Practice and procedure; 9.4.1 Application; 9.4.2 Venue; 9.4.3 Notice; 9.4.4 Respondents; 9.4.5 Service; 9.5 Rights of the child; 9.6 Variation, discharge and appeals; 9.6.1 Appeals; 10 Police Powers under the Children Act 1989; 10.1 Police powers and responsibilities; 10.2 Contact with child; 11 Instructions and Case Preparation in Family Proceedings; 11.1 Action plan on receipt of instructions from an adult or local authority; 11.2 Interviewing clients; 11.2.1 Checklist for information from parents; 11.2.2 Checklist for Public Law Outline requirements on information from local authorities and social workers; 11.2.3 Checklist for basic initial information from medical witnesses; 11.2.4 Working with parents with a learning disability and participation directions; 11.3 Preparation of the case; 11.4 Burden of proof and standard of proof in child law cases; 11.5 Special evidence rules in child law cases; 11.5.1 Character; 11.5.2 Best evidence and hearsay; 11.5.3 Opinion; 11.5.4 Statements made by children’s guardians; 11.5.5 No professional privilege for medical or psychiatric reports; 11.5.6 Case management hearings – ordering the evidence; 11.6 Court procedure at the hearing; 11.6.1 Notes of evidence; 11.6.2 Order of evidence; 11.6.3 Extent of evidence; 11.6.4 Case management hearing/issues resolution hearing: key checklist matters for advocate to consider; 11.7 Courtroom skills; 11.7.1 Court manners; 11.8 Transparency; 11.8.1 Media attendance and reporting hearings; 11.8.2 Objections to attendance; 12 Children’s Rights; 12.1 To accept or refuse medical treatment; 12.1.1 Children aged over 16 (but under 18); 12.1.2 Children aged under 16; 12.1.3 Children who lack capacity to make a decision; 12.1.4 Where no available person has parental responsibility; 12.2 To accept or refuse medical or psychiatric assessment; 12.2.1 Circumstances in which the court may direct medical or psychiatric examination or assessment which the child has a right to refuse; 12.3 To make his or her own application to the court; 12.4 To request confidentiality and, in the event of disagreement with the children’s guardian, to instruct a solicitor separately; 12.5 Rights of a child in care; 12.6 UN Convention on the Rights of the Child; 13 Other Orders available to the Court in Family Proceedings; 13.1 Orders in family proceedings; 13.2 Section 8 orders; 13.2.1 Leave to apply; 13.2.2 Considerations on application for leave; 13.2.3 Duration; 13.2.4 When the court may not make an order under section 8 of the Children Act 1989; 13.2.5 Welfare reports in applications under section 8 of the Children Act 1989; 13.3 Contact (spending time with, or otherwise having contact with); 13.3.1 Contact disputes; 13.3.2 Activity orders; 13.4 Prohibited steps; 13.5 Residence (living with); 13.5.1 Residence and parental responsibility; 13.6 Specific issue; 13.7 Supplementary provisions; 13.8 Practice and procedure in applications under section 8 of the Children Act 1989; 13.8.1 Mediation Information and Assessment Meetings and non-court dispute resolution; 13.8.2 Applications; 13.8.3 Venue; 13.8.4 Notice of application for orders under section 8 of the Children Act 1989; 13.8.5 Respondents; 13.8.6 Service; 13.8.7 Applications made without notice (formerly known as ex parte procedures); 13.8.8 Withdrawal, variation, discharge and appeals; 13.9 Family assistance order; 14 Commencement and Transfer of Proceedings; 14.1 General rules; 14.2 Applicants and allocation of family case; 14.2.1 Proceedings which must be commenced in the Family Division of the High Court; 14.2.2 Proceedings which must be commenced in the Family Court; 14.3 Transfers; 14.4 Urgent applications; 15 Working with Children; 15.1 Appointment and role of the children’s guardian; 15.1.1 Official Solicitor; 15.1.2 Public funding, access to information and disclosure; 15.1.3 Specified proceedings; 15.2 Conflict between children’s guardian and child; 15.2.1 Confidentiality; 15.3 Should I see my child client?; 15.3.1 Meeting a child client; 15.3.2 Decisions concerning a child’s competence; 15.4 Taking instructions and communicating with children; 15.4.1 Guidelines on effective meetings and communication with children; 15.5 Child development; 15.6 Understanding your child client – race, religion, culture and ethnicity; 15.7 After the case is over; 15.8 Judges seeing children in children law proceedings; 16 Assessment of Children in Need and Care Planning; 16.1 Developments and materials; 16.1.2 Resources for professionals; 16.2 Assessment Framework; 16.3 Care planning; 16.4 Adoption issues; 16.4.1 Legislation and other materials; 16.4.2 Independent Review Mechanism; 16.4.3 Publications; 17 Appeals and Enforcement; 17.1 Appeals and judicial review; 17.1.1 Appeal process and when permission is required; 17.1.2 Time limits for notice and procedure; 17.1.3 If permission is refused; 17.1.4 When will permission be granted?; 17.1.5 Judge sitting in Family Court appeals; 17.1.6 Lay justices/magistrates appeals; 17.1.7 Circuit judge or recorder appeals; 17.1.8 Judge of High Court Judge level appeals; 17.2 Complaints procedures; 17.3 Enforcement; 18 Expert Evidence; 18.1 What is an expert witness?; 18.2 Choosing and instructing expert witnesses; 18.2.1 Funding issues and prior authority from the Legal Aid Agency to instruct expert witnesses; 18.3 Expert witness evidence; 18.3.1 Expert instruction checklist; Permission, consents and preliminary enquiries of experts; Letters of instruction; Updating, expert conferences, agreed evidence and points in issue; Expert reports; 18.4 Expert evidence in court; 18.5 Finding the right expert; 18.5.1 Registers and directories; 18.5.2 Online resources; 19 Improving Law, Skills and Practice; 19.1 Professional and interdisciplinary associations; 19.2 The Law Society’s Children Law Accreditation; 19.3 Sources of useful information and contacts for children and families, and those who work with them; Index