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3.4 Statutory Framework

AMENDMENT

This chapter was amended in March 2015 to includes changes brought about by the Anti-Social Behaviour, Crime and Policing Act 2014.


Contents

  1. Statutory Framework
  2. Legal Definition of a Child


1. Statutory Framework

The following has been reproduced from Appendix B of Working Together to Safeguard Children 2015.

All organisations that work with children and families share a commitment to safeguard and protect children that is underpinned by a statutory duty or duties.

This Appendix briefly explains the legislation most relevant to safeguarding and promoting the welfare of children.

CHILDREN ACT 2004

Section 10 requires each Local Authority to make arrangements to promote co-operation between the authority, each of the authority’s relevant partners (see the table below) and such other persons or bodies, working with children in the local authority’s area, as the authority consider appropriate. The arrangements are to be made with a view to improving the well-being of children in the authority’s area - which includes protection from harm or Neglect alongside other outcomes.

Section 11 requires a range of organisations (See Table A: Bodies and individuals covered by key duties ) to make arrangements for ensuring that their functions, and services provided on their behalf, are discharged having regard to the need to safeguard and promote the welfare of children.

Section 13 of the Children Act 2004 requires each local authority to establish a Local Safeguarding Children Board (LSCB) for their area and specifies the organisations and individuals (other than the local authority) that the Secretary of State may prescribe in regulations that should be represented on LSCBs.

Section 14 sets out the objectives of LSCBs, which are:

  1. To coordinate 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 local authority, and
  2. To ensure the effectiveness of what is done by each such person or body for the purposes of safeguarding and promoting the welfare of children.

The LSCB Regulations 2006 made under section 13 set out the functions of LSCBs, which include undertaking reviews of the deaths of all children in their areas and undertaking Serious Case Reviews in certain circumstances.

Under section 55 of the Borders, Citizenship and Immigration Act 2009, the Secretary of State (in practice, the UK Visas and Immigration) has a duty to ensure that functions relating to immigration and customs are discharged with regard to the need to safeguard and promote the welfare of children. Section 55 is intended to have the same effect as section 11 of the Children Act 2004.

Table A: Bodies covered by key duties

Click here to view Table A: Bodies and individuals covered by key duties.

EDUCATION ACT 2002

Section 175 puts a duty on local education authorities, maintained (state) schools, and further education institutions, including sixth form colleges, to exercise their functions with a view to safeguarding and promoting the welfare of children - children who are pupils and students under 18 years of age, in the case of schools and colleges.

The same duty is put on Independent schools, including Academies / free schools, by regulations made under Section 157 of that Act.

CHILDREN ACT 1989

The Children Act 1989 places a duty on Councils with Social Services Responsibilities (CSSR's) to promote and safeguard the welfare of children in need in their area.

Section 17(1) of the Children Act 1989 states that:

It shall be the general duty of 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.

Section 17(5) enables the local authority to make arrangements with others to provide services on their behalf and states that every local authority:

  1. Shall facilitate the provision by others (including in particular voluntary organisations) of services which it is a function of the authority to provide by virtue of this section, or section 18, 20, 22A to 22C, 23B to 23D, 24A or 24B; and
  2. May make such arrangements as they see fit for any person to act on their behalf in the provision of any such service.

Section 17 (10) states that a child shall be taken to be in need if:

  1. The child is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;
  2. The child’s heath or development is likely to be significantly impaired, or further impaired, without the provision or such services, or
  3. The child is disabled.

Under section 17, local authorities have responsibility for determining what services should be provided to a child in need. This does not necessarily require local authorities themselves to be the provider of such services.

Section 47(1) of the Children Act 1989 states that:

Where a local authority:

  1. Are informed that a child who lives, or is found, in their area is the subject of (i) an Emergency Protection Order, or (ii) is in police protection, or (iii) has contravened a ban imposed by a curfew notice imposed within the meaning of Chapter I of Part I of the Crime and Disorder Act 1998; or
  2. Have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or 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. In the case of a child falling within paragraph (a) (iii) above, the enquiries shall be commenced as soon as practicable and in any event, within 48 hours of the authority receiving the information.

    (Children Act 1989 section 47)

Under section 17 of the Children Act 1989, CSSR's carry lead responsibility for establishing whether a child is in need and for ensuring services are provided to that child as appropriate. This does not require CSSR's themselves necessarily to be the provider of such services.

Section 17(5) of the Children Act 1989 enables the CSSR to make arrangements with others to provide services on their behalf.

Every local authority -

  1. Shall facilitate the provision by others (including in particular voluntary organisations) of services which the authority have power to provide by virtue of this section, or section 18, 20, 23 or 24; and
  2. May make such arrangements as they see fit for any person to act on their behalf in the provision of any such service.

    (Children Act 1989 section 17(5))

Section 53 of the Children Act 2004 amends both section 17 and section 47 of the Children Act 1989, to require in each case that before determining what services to provide or what action to take, the local authority shall, so far as is reasonably practicable and consistent with the child’s welfare:

  1. Ascertain the child’s wishes and feelings regarding the provision of those services; and
  2. Give due consideration (having regard to his age and understanding) to such wishes and feelings of the child as they have been able to ascertain.

Emergency Protection Powers

There are a range of powers available to local authorities and their statutory partners to take emergency action to safeguard children:

Emergency Protection Orders

The court may make an Emergency Protection Order under section 44 of the Children Act 1989 if it is satisfied that there is reasonable cause to believe that a child is likely to suffer Significant Harm if:

  • He is not removed to accommodation; or
  • He does not remain in the place in which he is then being accommodated.

An Emergency Protection Order may also be made if section 47 enquiries are being frustrated by access to the child being unreasonably refused to a person authorised to seek access, and the applicant has reasonable cause to believe that access is needed as a matter of urgency.

An Emergency Protection Order gives authority to remove a child, and places the child under the protection of the applicant for a maximum of eight days (with a possible extension of up to seven days).

Exclusion Requirement

The Court may include an exclusion requirement in an emergency protection order or an Interim Care Order (see Children and Families Act 2014, Section 14, Care, supervision and other family proceedings: time limits and timetables). This allows a perpetrator to be removed from the home instead of having to remove the child. The Court must be satisfied that:

  • There is reasonable cause to believe that if the person is excluded from the home in which the child lives, the child will cease to suffer, or cease to be likely to suffer, Significant Harm or that enquires will cease to be frustrated; and
  • Another person living in the home is able and willing to give the child the care which it would be reasonable to expect a parent to give, and consents to the exclusion requirement.

Police Protection Powers

Under section 46 of the Children Act 1989, where a police officer has reasonable cause to believe that a child would otherwise be likely to suffer Significant Harm, s/he may:

  • Remove the child to suitable accommodation and keep him or her there; or
  • Take reasonable steps to ensure that the child’s removal from any hospital, or other place in which the child is then being Accommodated is prevented

No child may be kept in police protection for more than 72 hours.

Police Reform and Social Responsibility Act 2011

Section 1 (8)(h) requires the police and crime commissioner to hold the chief constable to account for the exercise of the latter's duties in relation to safeguarding children under section 10 and section 11 of the Children Act 2004.

Childcare Act 2006

Section 40 requires early years providers to comply with the welfare requirements of the Early Years Foundation Stage.

Crime and Disorder Act 1998

Section 38 requires local authorities, within the delivery of youth justice services, to ensure the provision of persons to act as appropriate adults to safeguard the interests of children and young persons detained or questioned by police officers.

Housing Act 1996

Under Section 213A of the Housing Act 1996 (inserted by section 12 of the Homelessness Act 2002) section 12, housing authorities are required to refer to adult social care services homeless persons with dependent children who are ineligible for homelessness assistance or are intentionally homeless, to social services, as long as the person consents. If homelessness persists, any child in the family could be in need. In such cases, if social services decide the child’s needs would be best met by helping the family to obtain accommodation, they can ask the housing authority for reasonable advice and assistance in this and the housing authority must give reasonable advice and assistance.

Anti-social Behaviour, Crime and Policing Act 2014

Anti-Social Behaviour

For more information see Anti-social Behaviour, Crime and Policing Act 2014: Reform of anti-social behaviour powers and Statutory guidance for frontline professionals.

The Anti-social Behaviour, Crime and Policing Act 2014 includes two new measures which are designed to give victims and communities a say in the way anti-social behaviour is dealt with:

  • The Community Trigger gives victims the ability to demand action, starting with a review of their case, where the locally defined threshold is met;
  • The Community Remedy gives victims a say in the out-of-court punishment of perpetrators for low-level crime and anti-social behaviour.

Protection from sexual harm and violence

Part 9 of the Act has created two new orders: the Sexual Harm Prevention Order and the Sexual Risk Order. The aim of the new orders is to provide enhanced protection for both the public in the UK and children and Adults at Risk abroad.

  • The Sexual Harm Prevention Order (SHPO) has replaced the sexual offences prevention order and foreign travel order and may be made in relation to a person who has been convicted of or cautioned for a sexual or violent offence (including equivalent offences committed overseas) and who poses a risk of sexual harm to the public;
  • The Sexual Risk Order (SRO) has replaced the risk of sexual harm order and may be made in relation to a person without a conviction for a sexual or violent offence (or any offence), but who poses a risk of sexual harm.


2. Legal Definition of a Child

This is taken from NSPCC Factsheet: Legal Definition of a child

2.1 What law defines the age of a child in the UK?

There is no single law that defines the age of a child across the UK. The UN Convention on the Rights of the Child, ratified by the UK government in 1991, states that a child “means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier” (Article 1, Convention on the Rights of the Child, 1989).

In the UK, specific age limits are set out in relevant laws or government guidance. There are, however, differences between the UK nations.

2.2 What is the definition of a child in child protection guidance?

A child is anyone who has not yet reached their 18th birthday.

HM Government (2013) Working together to safeguard children: A guide to inter-agency working to safeguard and promote the welfare of children (PDF) - now archived. London: Department for Education (DfE).

Vulnerable groups

Some especially vulnerable groups have their entitlement to services extended beyond 18. For instance the Children (Leaving Care) Act 2000 states that local authorities in England and Wales must keep in touch with care leavers until they are at least 21, and they should provide assistance with education, employment and training.

2.3 What is the age of consent?

The Sexual Offences Act 2003 states that the age of consent for sex is 16 years old in England and Wales. It is not intended that the sexual offences legislation be used to prosecute mutually consenting sexual activity between under 16s, unless it involves abuse or exploitation. To protect younger children, the law says children aged under 13 years can never legally give consent, so any sexual activity with a child aged 12 years or under will be subject to the maximum penalties.

The legislation also gives extra protection to young people aged 16 to 17 years. It is illegal to take, show or distribute indecent photographs, pay for or arrange sexual services, or for a person in a position of trust (e.g. teachers, care workers) to engage in sexual activity with anyone under the age of 18 years.

2.4 What is the age of criminal responsibility?

The age of criminal responsibility is the age at which, in the eyes of the law, a child is capable of committing a crime and therefore old enough to stand trial and be convicted of a criminal offence.

In England the age of criminal responsibility is 10 years. The age limit in England and Wales was legislated by section 34 of the Crime and Disorder Act 1998.

2.5 At what age should children's wishes be taken into account?

Most guidance relating to services for children (such as safeguarding and health care) stresses the importance of listening to the wishes of the child. However, the authorities have a duty to act in the best interests of the child, which may mean contradicting their wishes.

For instance, in England and Wales, section 53 of the Children Act 2004 amended section 17 and section 47 of the Children Act 1989 to give due consideration to the wishes and feelings of the child as far as reasonable, before determining what services to provide or action to take.

2.6 At what age is parental consent no longer required?

Many activities have their own age limits and the age when a child may make their own decisions without the consent of parents, or those with parental responsibility, depends on the activity in question.

For more detailed information read “At what age can I?” from the Children’s Legal Centre: Rogalski, Holly (2010) At what age can I? A guide to age-based legislation. Wivenhoe Park, Essex: Children's Legal Centre.

2.7 What are the Fraser guidelines?

When deciding whether a child is mature enough to make decisions, people often talk about whether a child is "Gillick competent" or whether they meet the "Fraser guidelines". The NSPCC factsheet explains Gillick competency and Fraser guidelines. See also Allegations of Harm Arising from Under Age Sexual Activity Procedure

2.8 At what age can a child be employed?

The school leaving age in the UK is currently 16, although the exact leaving date depends on a pupil's date of birth.

The Education and Skills Act 2008 changed the law so that young people in England will be required to participate in education or training until the age of 17 (from 2013) and until the age of 18 (from 2015).

For young people who are over the school leaving age but under 18, there are special restrictions on doing certain types of work:

  • Work that a young person is not physically or mentally capable of doing;
  • Work that brings a young person into contact with chemical agents, toxic material or radiation;
  • Work that involves a health risk because of extreme cold, heat or vibration.

The local authority has power to forbid the employment of a child under the school leaving age who is at a local authority-maintained school, or to impose restrictions on the child’s employment. However, the authority can only use this power if they think that the child is being employed in a way that prejudices the child’s health or makes the child unfit to obtain the full benefit of his or her education. This power does not apply where the child is a pupil at an independent school or an Academy

For more information see the NSPCC factsheet on Children, Employment and the Law.

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