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Friday July 1, 2022
What does the Family Court look at when making an order in care proceedings?
For a care or supervision order to be made the court must be satisfied that ‘the child is suffering, or is likely to suffer, significant harm and that the 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 to him or her; or the child is beyond parental control’.
This legal test is contained in the Children Act 1989 and is known as the ‘threshold criteria’ and it is for the Local Authority as the applicant (the person who started the proceedings) to show that the threshold has been met for a care order or supervision order to be made.
The threshold criteria can be broken down into smaller pieces:
‘Harm’ is defined in the Children Act 1989 as the ill treatment of a child or the impairment of their health or development.
‘Development’ means physical, intellectual, emotional, social or behavioural development
‘Health’ means physical or mental health
‘Ill-treatment’ includes sexual abuse and forms of ill-treatment which are not physical.
This has been interpreted very widely and can include harm by seeing someone else being mistreated, e.g., witnessing domestic abuse in the home.
The Children Act 1989 doesn’t define what counts as ‘significant’ but whether or not harm is ‘significant’ will depend on the impact it has on the child’s health or development. The child that the Local Authority is concerned about will be compared to what would be expected for similar children.
The court can only remove your children from you if it is satisfied that your children’s safety requires their immediate separation from you
What type of behaviour might count as ‘significant harm’?
Our specialist children solicitors understand that this can be very confusing for parents and that sometimes what counts as the different kinds of harm, development, health or ill-treatment needs further explanation. Neglect, physical abuse, emotional abuse and sexual abuse are all types of significant harm that the court can take into account when deciding whether court orders should be made.
Neglect – A child is being neglected if they are not having their basic needs met by their parents or carer and it is having a serious effect on their health or development. It can include letting children go hungry, not having suitable clothes, poor home conditions, not taking them to the doctor or dentist when they need to go, not making them go to school and not having age-appropriate toys and books to help their development. Many more things can count as neglect, but these are the ones that our children specialist solicitors see being raised in court proceedings on a regular basis. Neglect can happen for lots of different reasons, it could be that parents are facing their own health challenges, financial problems, have drink or drug problems, are experiencing domestic abuse or don’t understand how to care for their children. Social workers should try and offer help and support to families but if the concerns get worse, they may become involved with a family as part of child protection or pre-proceedings. If they believe that it has become unsafe for a child then immediate steps will be taken to protect the child, this could include asking the parent to agree to the child living somewhere else, the person who they believe is causing the physical abuse to move out, asking the police to use their powers of protection or starting court proceedings for an emergency protection order or care order.
Physical abuse – This means a child is subjected to physical harm to their body, such as by hitting, smacking, pinching, burning, shaking or being thrown. It could also include things being thrown at them and causing harm, being in someone’s arms when that person is hurt causing the child to become hurt too or when a parent fabricates or induces an illness. This is not a complete list and is just designed to give an idea of the kind of behaviours that might be classed as physical abuse which has caused problems to their physical health or physical development. If a social worker believes that physical abuse is taking place at home, and a child isn’t safe, immediate steps will be taken to protect the child, this could include asking the parent to agree to the child living somewhere else, the person who they believe is causing the physical abuse to move out, asking the police to use their powers of protection or starting court proceedings for an emergency protection order or care order.
Emotional abuse – This means a child is subjected to abuse that impacts on their emotional development, such as putting a child down, making them feel useless or unloved, expecting too much, not letting a child have a voice, making a child feel frightened or in danger. It can be deliberate or not intentional when a family is struggling or don’t understand about how their actions impact on the child. This isn’t a complete list and lot of things can be emotional abuse, emotional abuse can also be tied up in other kinds of abuse. Emotional abuse can have a big impact on mental health and emotional development. Social workers could become involved with a family through child protection, pre-proceedings process or by starting court proceedings.
Sexual abuse – This means a child is subjected to sexual abuse, inappropriate sexual behaviour, forced or pressured into sexual activity, sexually harassed, groomed or exploited. It is widely defined and includes situations from children being raped, touched sexually, being exposed to sexual images or activity without being touched. If a social worker believes that sexual abuse is taking place at home, and a child isn’t safe, immediate steps will be taken to protect the child, this could include asking the parent to agree to the child living somewhere else, the person who they believe is causing the physical abuse to move out, asking the police to use their powers of protection or starting court proceedings for an emergency protection order or care order.
What if the court is making an order at the start of the proceedings before it has all of the information?
If a court is being asked to make an order before the end of the proceedings, e.g., at the start of the proceedings or part of the way through, this is called an ‘interim’ order. You may hear about ‘interim care orders’, ‘ICOs’ or ‘interim supervision orders’. A court shall not make an interim care order or interim supervision order unless it is satisfied there are reasonable grounds for believing that the circumstances with respect to the child meet the threshold criteria above.
Just because care proceedings have been started, does it mean a care order will definitely be made?
No, there are different outcomes that can take place at the end of care proceedings. A court could decide to make a care order, a supervision order, a special guardianship order, a child arrangement order or no order at all. Sometimes, when the plan is adoption, the Local Authority will apply for a placement order alongside the care proceedings and if this is successful it could lead to an adoption order being applied for by the family the child is placed with. We have set out the different outcomes that might be available to a court here but take the guess work out and speak to our care team at AFG today. Our care solicitors can provide you with individual advice about your family.
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