Social Workers are NOT above the law
Seek professional legal advice if the need arises, however, there is adequate information here for you the reader to make an informed choice if the need arises in the future.
Under section 47 of the Offences against the Persons Act 1861, a social worker cannot remove your child if the child wishes to stay, this is assault under the OPA 1861, the minimum sentence to have 6 months and/or fine to 5 years in prison and or Fine.
According to the rules laid out by the CSCI, it follows as thus:
Consderation should be given by departments to Section 47 OPA 1861 when removing children at risk of serious harm from the family home under the powers of the childrens act 1989.
It is an assault to forceably remove a child from the home if a child is demanding to stay.
If this happens an order must be sought from the court as to forceably remove the child or children concerned.
The law is the law, the child's interest's can only be upheld within the framework of the law and any transgression outside of the law MUST be dealt with.
If this situation arises, once the social worker has left, contact your solicitor and apply to have any ex-parte applications blocked and moved to the family court setting, a magistrate is not equipped to assess this type of case but will only do what is in his power and grant permission.
Public Bodies are law bound to let you know of any relevant law or orders that may effect you or your child in any legal situation, if they have dragged your child off kicking and screaming and failed to tell you of the above then maybe you have a case against them.
Childrens Act 1989.
The Children Act 1989 (Principles and Concepts)
Under the Children Act 1989, Local Authorities, have a general duty to safeguard and promote the welfare of children within their area who are in need. (Sec. 17 Children Act 1989).
Local Authorities must assess a child's needs and promote the upbringing of children by their own families if safe to do so.
Local Authorities should work in partnership with parents. While the Local Authority will seek a Court order when compulsory action is in the best interest of the child, the first option must be to work with the parents by voluntary arrangement unless to do so would clearly be placing the child at risk of significant harm.
The Court will only make an order if it is better for the child than making no order. Consideration of the welfare checklist assists the Court in making this decision.
In all cases when the Court determines any question with respect to the child's upbringing, the child's welfare shall be the paramount consideration.
The Children Act introduces the principle that delay in Court proceedings is harmful to the child*. The Court has the power to draw up a timetable and give directions as to the conduct of the case and will invariably exercise this power. There is however a general principal that there will be some occasions where delay is beneficial.
*(this however is somewhat negated by the Lords finding's in 1996 when upon it was remarked upon that a simple ruling took nearly six months to clarify.
Child means any person under the age of 18 years (16 years if married).
Parental responsibility is defined as, "All the rights, duties, powers, responsibilities and authority which a parent has in relation to the child and the child's property."
Birth mothers (and fathers married to the birth mother) automatically have parental responsibility.
The natural father who is not married to the birth mother can acquire parental responsibility by means of a formal agreement with the mother or on application to Court for an order granting parental responsibility or on the grant of a Residence Order. Parental responsibility in these circumstances can be terminated by Court Order.
Parental responsibility may be acquired by other adults in the child's life through a Court Order but will cease when the Order ends or is terminated.
Parents with parental responsibility can appoint a Guardian to have parental responsibility upon death of the parent.
The Local Authority will acquire parental responsibility upon the granting of a Care Order. Limited responsibility is given with an Emergency Protection Order.
Under Adoption Orders, parental responsibility lies solely with the adopters.
A child is defined as being subject of significant harm where there is ill treatment or impairment of health or development:
'Ill-treatment' includes sexual and emotional abuse as well as physical abuse
'Health' includes physical and mental health
'Development' includes physical, intellectual, emotional, social and behavioural development
'Significant Harm' turns on the question of the harm suffered by a child in respect of its health and development compared with the health and development reasonably expected of another child. (Sec. 31(10) Child Act 1989)
Child in Need
A child is defined as being a child in need if:
They are unlikely to achieve or maintain, or have the opportunity of achieving, or maintaining, a reasonable standard of health or development without the provision for them of services by a Local Authority
Their health or development is likely to be significantly impaired or further impaired, without the provision of such services
They are disabled. (Sec. 17/10) Children Act 1989)
Duty to Investigate – Children in Need – (Reference Sec. 17 Children Act 1989).
3.1 It is the general duty of every Local Authority to:
Safeguard and promote the welfare of children within their area who are in need
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
In order to undertake this task, the Local Authority will provide a range of services which will also help children in need to continue to live with their families and which are designed to help prevent abuse and neglect.
The underlying philosophy in the provision of services is to work in partnership with parents and children to prevent the breakdown of family relationships and minimise the need to have recourse to Court or emergency protection.
The keynote to achieving this aim is careful joint planning and agreement in the provision of services within the family home, assisting and enhancing the parental authority.
The Local Authority is required to make such provisions as it thinks appropriate to provide the following services to children in need:
Advice, guidance and counselling
Occupational, social, cultural and recreational activities
Home help (including laundry facility)
Facilities or assistance with travel to and from any services provided under the Act or similar service
Assistance to enable the child and the family to have a holiday
The decision as to whether a child is in need (as defined in Section 17 of the Children Act 1989) as opposed to in need of protection (as defined in section 47 of the Children Act 1989) will always be complex.
A list of risk factors should only be used as one tool in the overall assessment plan as this method alone can give workers a false sense of security while failing to protect children whose families do not appear to exhibit these particular risk factors.
The family context in which harmful or abusive behaviour by parents occurs is an important factor in assessing risk to the child.
In this context, workers should refer to the section on Framework of Assessment.
The Local Authority also has a duty to investigate if:
Ordered to do so by the Court in any family proceedings
A Court discharges an Education Supervision Order and orders the Local Authority to investigate
A local Education Authority notifies them that a child is persistently failing to comply with directions made under an Education Supervision Order
They are informed that a child who lives, or is found, in their area is the subject of an Emergency Protection Order or is in Police protection
The child is contravening a ban imposed by a Curfew Notice under Crime and Disorder Act 1998
Duty to Investigate – Significant Harm
– (Sect. 47 Children Act 1989)
The Children Act 1989
The Children Act 1989
The Children Act 1989
The Children Act 1989
The Children Act 1989
The Children Act 1989 Section 27
Paragraph 4 Schedule 2
Paragraphs 17-19 Schedule 3
The Local Authority has a duty to investigate when there is reasonable cause to suspect that a child is suffering, or is likely to suffer, significant harm.
The investigation will include an objective of the needs of the child, including the risk of abuse and need for protection, as well as the family's ability to meet those needs.
In the course of the investigation the Local Authority must take such steps as are reasonably practical to obtain access to the child, or to ensure that a person obtains access on its behalf authorised by the Local Authority for this purpose.
If the Local Authority is refused access to the child, it must apply for a Court order unless satisfied that the child's welfare can be safeguarded without an order.
If, as a result of the investigation, the Local Authority is satisfied there is no need to apply for a Court order, it must decide whether or not to review the situation at a later date and set that date.
It is the duty of the following agencies to assist Local Authorities in their enquiries by providing relevant information and advice if called upon to do so (unless it would be unreasonable, given all the circumstances of the case):
Any Local Authority
Any local Education Authority
Any local Housing Authority
Any Health Authority or NHS Trust.
Neither the Police nor the Probation Service is included in this list. It is assumed that both services would assist if requested as part of their established duties.
A decision to remove a child from home must balance the likely immediate and long-term effects of removing the child against the possible harm if the child is left at home. This decision should also take into account the need either to secure evidence of criminal offences or arrest suspects.
Except when a child is in acute physical danger, it is essential that the timing of the removal of a child from their home should be agreed following consultation with all appropriate professionals. This will normally follow initial assessment and a strategy discussion.
Emergency Protection Orders (S44 Children Act 1989) (EPO)
These should be used only in a genuine emergency either to remove the child from where they are or to ensure that the child stays where they are, for example in hospital, to provide immediate and short-term protection. The application may be made without prior notice to those with care or parental responsibility if it is not practicable or is not in the best interest of the child.
The grounds for obtaining an Emergency Protection Order are that:
The Court is satisfied there is reason to believe the child is likely to suffer significant harm
Access to the child is being unreasonably refused and there is good reason to believe that they are in circumstances where they are likely to be suffering significant harm
Duration of the Order is as follows:
The order is for eight days only (with one possible extension for a further seven days)
An application can be made to discharge the order after 72 hours
A Guardian ad Litem will be appointed
Conditions for the Order are as follows:
The Court may make directions as to contact with the child and/or medical or psychiatric examination or other assessment
The applicant must name the child or describe the child as clearly as possible
The order may include directions to enter and search
If the Court believes the applicant has been or may be refused access to the child, it may issue a warrant to the Police to assist, using if necessary, reasonable force. The Court can direct that a Doctor, Nurse or Health Visitor may accompany the Police officer and/or Social Worker
The Order does not confer full parental rights to the applicant or to give consent for medical examination/treatment
Police Protection Order (S46 Children Act 1989) (PPO)
These are to be used in cases of immediate emergency where the delay of applying for an Emergency Protection Order would pose significant harm to a child. This Order should not be used where a Local Authority can apply for an Emergency Protection Order and has sufficient time to do so.
The Police must have reasonable grounds for believing the child would otherwise suffer significant harm.
The duration for the Order can be up to 72 hours but can be allowed to lapse before this time if the child's safety is not at issue.
Conditions for the Order are as follows:
The Police must inform the Local Authority, the person(s) with parental responsibility for the child and the child about the steps taken and the reasons
A Designated Officer must be appointed to enquire into the circumstances of the case and release the child from Police protection unless there is still reasonable cause to believe the child would suffer significant harm should this be done
Recovery Orders under Section 50 Children Act 1989 will only be granted by a Court when a child is subject of Care, Police Protection or an Emergency Protection Order:
Has been unlawfully taken away or kept away from a "responsible person"
Has run away or staying away from a "responsible person"
Is missing and their location is known
A "responsible person" is one who has care by means of a Court Order, Police Protection Order or Emergency Protection Order.
An application can be made to the Courts without the knowledge of the respondents if this is in the best interests of the child and upon it being granted, authorises a Police Officer to enter any premises specified to search for the child.
Any person intentionally obstructing an authorised person under the Order to remove a child commits an offence
Whilst the above is not exhaustive, it is not hard to see where various things go wrong a social worker could cut corners and still arrive at the "risk" conclusion
Disclaimer: Content on this site is placed Without – Prejudice.
Search this site.
Click Here to email Us if you think we can help you in any way.