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Family Law

Eighth edition

by Kate Standley

Updates for Chapter 14: Child protection

May 2014 update

The crime of child abuse can include emotional abuse

The Queen’s Speech, delivered on 4 June 2014, included plans to criminalise the emotional abuse of children. The intention is to clarify the offence of child cruelty (in section 1 of the Children and Young Persons’ Act 1933), to make it explicit that the offence covers cruelty which causes psychological harm. This measure is contained in Part 5 of the Serious Crime Bill 2014-15 which is currently going through Parliament (see http://services.parliament.uk/bills).

14.3 The European Convention for the Protection of Human Rights and Child Protection

14.3 (iv) Procedural fairness and human rights

Procedural fairness and human rights were considered in the following case:
Sir James Munby P referred to the above decision in his 10th View From the President’s Chambers stating that Pauffley J had to deal with circumstances which he hopes ‘will never recur’ in a judgment; and that the judgment would ‘repay careful consideration by all public law practitioners’.

14.7 Part IV of the Children Act 1989 – care and supervision

14.7 (a) Reducing delay in care cases

The 26-week time limit on the determination of care and supervision proceedings, which has been piloted since 2 July 2013, has been put into statute (by way of an amendment to section 32(1)(a) of the Children Act 1989 by section 14 of the Children and Families Act 1014). The time limit can be extended by 8 weeks up to a total of 26 weeks, but the court has to be convinced that each extension is necessary to enable the court to resolve the proceedings justly. Extensions are not to be granted routinely and are to be seen as requiring specific justification.

14.7 (d) The standard of proof in care and supervision proceedings

Cases in the Court of Appeal post Re B (A Child)

For an example of a case where the effect of Re B (A Child) [2013] UKSC 33 has been considered by the Court of Appeal, see Re V [2013] EWCA Civ 913.


14.7 (f) The local authority’s care plan


Section 15 of the Children and Families Act 2014 amends s 31(3A) of the Children Act 1989 so as to focus the court’s consideration (when deciding whether to make a care order) on the provisions of the care plan that set out the long-term plan for the upbringing of the child. The court is required to consider whether the local authority’s care plan provides for the child to live with a parent or any member or friend of the child’s family, or whether the child is to be adopted or placed in other long term care. These are referred to as the ‘permanence provisions’ of a section 31A plan. The court is not required to consider any other provisions in respect of a section 31A plan (other than section 34(11) of the Children Act 1989 which requires the court to consider the contact arrangements for the child), although the amendments do not prevent the court from doing so.

14.7 (g) Effect of a care order – obligations of the local authority

Placement of the child

Placement of children for whom the local authority is considering adoption

The Government is reforming the adoption system to remove barriers and reduce delay so that all children for whom adoption is in their best interests can be placed quickly with adoptive families. In An Action Plan for Adoption: Tackling Delay published in March 2012 the Government set out proposals to speed up the adoption process, including by proposing changes to legislation. In July 2012, the Prime Minister announced proposals to introduce a new legal duty for ‘Fostering for Adoption’ to encourage local authorities to place children with their potential permanent carers more swiftly. These changes would reduce the time children have to wait for an adoptive placement and enable more children to be placed in stable, loving homes with less delay and disruption and improve their chances of leading full and happy lives.

These proposals are included in the Children and Families Act 2014 which has introduced a new legislative framework for ‘fostering for adoption’ by adding new subsections to section 22C of the Children Act 1989: sections 22(9A), (9B) and (9C).The aim of these new provisions is to encourage local authorities to place children (for whom they are considering adoption) more swiftly with their potential permanent carer(s). These new provisions are due to come into force in July 2014.

14.7 (i) Interim care and supervision orders

An interim care order or interim supervision order can now be made for longer than 28 days (see section 14(4) of the Children and Families Act 2014 which amends section 38 of the Children Act 1989). Where a court makes an order under s.37(1) directing a local authority to investigate the child’s circumstances and no application for a care or supervision order is made under s.37(4), any interim order made on giving the direction will end automatically after 8 weeks.

14.11 Challenging local authority decisions about children

14.11 (iv) A challenge under the Human Rights Act 1998

In the following case the mother made a successful challenge against a local authority with respect to the removal of her youngest child:

Further reading and references

Nickols D, ‘Fostering for adoption: progress, an unjustifiable ‘fait accompli’ or something in-between? Part I’ [2014] Fam Law 190.
Nickols D, ‘Fostering for adoption: progress, an unjustifiable ‘fait accompli’ or something in-between? Part II’ [2014] Fam Law 339.



January 2014 update

14.1 The practice of child protection

14.1(a) Personnel involved in child protection

A revised Working Together to Safeguard Children (2013) guidance came into effect on 15 April 2013. In response to recommendations from The Munro Review of Child Protection: Final report - A child-centred system, the new guidance clarifies the legal requirements on individuals and organisations to keep children safe. It sets out the legal requirements that health services, social workers, police, schools and other organisations that work with children must follow and emphasises that safeguarding is the responsibility of all professionals who work with children. (See Department for Education www.education.gov.uk).

14.7 Part IV of the Children Act 1989 – care and supervision

Government statistics

The total number of children in care in England and Wales in March 2013 was 68,110, an increase of 2 per cent on the previous year and an increase of 12 per cent since 2009. Of those in care, 51,000 (75 per cent) were in foster care.

New rules to improve residential care for children

The Government has introduced new measures to discourage councils from placing vulnerable children in residential care distant from their homes. These rules are due to come in at the end of January 2014. Following a consultation on reforms to residential care for children who have been taken from their families, Children’s Minister Edward Timpson said:
It’s totally unacceptable for local authorities to routinely place children miles away from their homes for no good reason. Far too often an ‘out of sight, out of mind’ culture prevails, and I’m determined to tackle it. In future, only senior council officials in charge of children’s services will be able to place children out of area and only when they judge it to be the right decision for a child to be moved away from their home area. There will be one individual in each local authority who is directly accountable for these decisions.


These reforms also include other requirements. Thus, care homes must tell their local councils when children move into and out of their area. Also, new residential homes must only open in safe areas; and homes which have already opened in less safe areas must show that they can keep their children safe, or otherwise face closure. All care homes must have staff who are suitably qualified.

14.7(a) Reducing delay in care cases

In Devon County Council v EB & Ors [2013] EWHC 968 (Fam), a complex fact finding hearing concerning twins born to parents who suffered from a range of medical conditions, Baker J took the opportunity to comment on the introduction of a 26 weeks time limit for the completion of non-exceptional care cases. He stated: ‘[T]his case demonstrates that, whilst it will be possible to conclude the vast majority of care cases within 26 weeks, as proposed by the modernisation reforms, there will still be a small minority of cases, exceptional cases, where the investigation takes longer. . . . Judges must be vigilant to identify those rare cases which require longer time. It is, of course, important that these cases are identified as soon as possible at the outset of proceedings and that any delay is kept to a minimum’.

14.7(b) Care and supervision proceedings procedure


A judge has the power to reverse his or her decision at any time before the order is drawn up and perfected.
The Supreme Court so held in the following case:

14.7(b) Children can give oral evidence in care proceedings

A young person’s appeal against his refusal to be given the opportunity to give oral evidence in care proceedings was dismissed in the following case:

14.7(d) The standard of proof in care and supervision proceedings

Proof of likely to suffer harm

In Re J (Children) [2013] UKSC 9 the Supreme Court had to decide whether a child can be regarded as ‘likely to suffer’ harm if another child has been harmed in the past and there was a possibility that the parent now caring for them was responsible for that harm to another child. The main judgment was given by Lady Hale who reaffirmed that In re S-B (Children) UKSC [2009] 17 is authority for the proposition that a real possibility that a parent has harmed a child in the past is not, by itself, sufficient to establish the likelihood that the same parent will cause harm to another child in the future.

Significant harm and emotional or psychological harm

The following case, in the words of Lady Hale, raised ‘some profound questions about the scope of courts’ powers to take away children from their birth families when what is feared is, not physical abuse or neglect, but emotional or psychological harm’. The case is also relevant to the question of whether or not a child should be adopted and/or made the subject of a placement order (see Chapter 15).

** See family law week (www.familylawweek.co.uk) for a useful pdf document which provides a table of what each member of the Supreme Court held in Re B (‘Re B (A Child): Who held what in the Supreme Court?’).

Cases in the Court of Appeal post Re B (A Child)

For some cases where the effect of Re B (A Child) has been considered by the Court of Appeal, see Re B-S [2013] EWCA Civ 813; Re G [2013] EWCA Civ 965; Re P [2013] EWCA Civ 963; and Re B-S (Children) [2013] EWCA Civ 1146.


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