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THE CHILDREN ACT 1989 GUIDANCE and REGULATIONS VOLUME 1 COURT ORDERS

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THE CHILDREN ACT 1989 GUIDANCE and REGULATIONS VOLUME 1 COURT ORDERS Title: THECHILDRENACT1989GUIDANCEand REGULATIONSVOLUME1COURTORDERS Audience: Directors of Social Services, Head of Children Services Social Workers, their Managers and Legal Teams, Local Safeguarding Children Boards, Local Health Boards, NHS Trusts, Children and Young Peoples Partnerships, Police, Youth Offending Teams and CAFCASS CYMRU who together oversee the exercise by local authorities and their partners of their functions under the Children Act 1989 and 2004, in relation to safeguarding and promoting the welfare of children and young people. Overview: This guidance replaces Volume 1 of Children Act 1989 Guidance in respect of courts orders and preparation for child care proceedings: (i) the orders available under Parts 1, 2, 4 and 5 of the Children Act 1989 as well as secure accommodation orders (Part 3, section 25); and (ii) that court orders should not be seen as a free-standing end product but must be considered within the context of a wide range of provisions available under the Act to safeguard and promote the welfare of children, before, after and outwith court proceedings. This guidance needs to be read in conjunction with other guidance and Regulations in relation to the Acts. Action Required: The guidance is issued under section 25(8), 27(4) and 28 (4) of the Children Act 2004 and section 7 of the local Authority Social Services Act (LASS) 1970. Local authorities and their partners must have regard to this guidance when considering making an application to the court for various orders under the Children Act 1989 in respect of children. In particular it covers new arrangements for the preparation of child-care proceedings under section 31 of the Act Enquiries: Enquiries about this guidance should be directed to: Donna Davies or Vivian Cornelius, Vulnerable Children Team. Telephone: 029 20826844/5472 E-mail [email protected] or [email protected] This guidance can be accessed from the Welsh Assembly Government’s web site at: http://new.wales.gov.uk/topics/childrenyoungpeople/childrenfirst/ 1 ForewordbyDeputyMinisterforSocialServices: GwendaThomasAM This guidance on court orders updates previous guidance and in particular sets out the arrangements that local authorities and their partners must put in place in considering and preparing for childcare proceedings, when all other avenues have been exhausted. The Welsh Assembly Government’s fundamental belief is that children are best supported living with their family or friends of the family in their local communities and social networks. This guidance and the complementary direction to the Courts in the Public Law Outline support this principle and, where care proceedings are deemed appropriate, supports the streamlining of process in preparation for and during court proceedings. Research suggests that there is often room for services to act earlier and more decisively to provide support and safeguard children’s welfare. We intend that these new arrangements, taken with the development of a wider range of services to support families and backed in due course by Welsh Assembly Government legislation, will result in a greater number of children being supported to live safely with their families. Better communication with families before children go into care will enable local authorities to foster a social contract with families to gain their commitment to overcome some of their difficulties, so that where the child enters care there is a stronger prospect of return to the family. In this context, being in care can be seen as one of a range of family support services and direct work with the family may continue whilst a child is in care. I welcome this guidance and its aim to place more rigour, consistency and accountability within the process at both local authority and the courts. The emphasis on the importance of earlier engagement and to help families to better understand the process and its consequence, their responsibilities to the child and options available to parents and wider family and friends regarding the child’s welfare. What happens to children and their families before coming into care has a major influence on what happens during their period in care. It is imperative that we can be fully confident that the child and family’s whole experience is positive at every stage of the process and to ensure that exhaustive steps have been taken to explore alternatives before local authorities make an application to the court for a care order. 2 Fulfilled Lives, Supportive Communities set out our commitment to modernise social services and, working in collaboration with their partners, to bridge the gap between children’s and adult services to support families. Later this year we will consult on proposals for strengthening support for families, in particular those where substance misuse, mental health problems, or learning disabilities are adversely affecting their parenting, and for ensuring that social workers and others working in family services have the necessary skills, experience, time and tools to work in a more effective way with families The Welsh Assembly Government expects local authorities and their partner agencies to implement these new arrangements through a multi agency and multi disciplinary approach. Improving core processes in assessment, care management and review of care plans requires timely support from people in other agencies. Information on educational or health needs of and services for children and health needs of or services for parents, for example, is often critical to proper assessment and care planning and lack of such information can be a cause of delay in Court process. To support the successful implementation of these new arrangements, I have set up a task group of senior cross sector partners, including the judiciary, to monitor and oversee their effective implementation. I know there is an appetite and commitment for improvement in this area. I therefore urge you to implement this guidance effectively to ensure better outcomes for children, young people, their families and future generations. Gwenda Thomas Deputy Minister for Social Services 3 TABLEOFCONTENTS CHAPTER1–INTRODUCTION 8 Summary – Paras 1.1-1.7 8 Children and Their Families – Para 1.8 9 Child Centred Welfare Principles – Paras 1.9-1.15 9 Concurrent System of Jurisdiction – Paras 1.16-1.18 11 Appeals – Paras 1.19-1.21 12 Role of CAFCASS CYMRU – Paras 1.22-1.26 13 Arrangement of the Guidance – Paras 1.27-1.29 15 CHAPTER2–PARENTALRESPONSIBILITYAND PRIVATELAWASPECTSOFTHEACT 16 Summary – Paras 2.1-2.4 16 Introduction – Para 2.5 16 The meaning of parental responsibility – Paras 2.6-2.7 17 Married and Unmarried parents – Paras 2.8-2.11 17 Step parents – Paras 2.12-2.14 19 Delegation of the exercise of parental responsibility – Para 2.15 20 Responsibility of carers – Paras 2.16-2.17 20 Guardianship – Para 2.18 20 Appointment of guardians – Paras 2.19-2.23 21 Revocation, disclaimer and termination – Paras 2.24-2.26 23 Section 8 Orders – Paras 2.27-2.28 24 Residence Orders – Paras 2.29-2.34 25 Contact Orders – Paras 2.35-2.36 27 Prohibited Steps Orders – Para 2.37 27 Specific Issue Orders – Paras 2.38-2.41 28 The meaning of family proceedings – Paras 2.42-2.44 29 Applications for Section 8 Orders – Paras 2.45-2.54 30 The position of local authority foster parents Paras 2.55-2.56 33 The position of local authorities – Para 2.57 33 Older children – Para 2.58 34 Special Guardianship – Paras 2.59-2.66 34 4 Family Assistance Orders – Paras 2.67-2.71 36 Risk Assessment – Para 2.72 38 The Court’s duty when considering whether to make an order – Paras 2.73-2.75 38 The relationship between private law ordersand public law proceedings – Paras 2.76-2.77 39 Financial provision for children – Paras 2.78-2.79 40 CHAPTER3–CAREANDSUPERVISIONORDERS 42 Summary – Paras 3.1-3.5 42 Care and Supervision Proceedings – Paras 3.6-3.11 43 Assessment Processes – Paras 3.12-3.18 45 Applications for Care and Supervision Orders (Sections 31 and 32) -The order making powers of the court – Paras 3.19- 3.21 49 Matters to be considered by local authorities before making an application for a care or supervision order – Paras 3.22-3.33 50 The making of the application – Para 3.34 55 Conditions for a care or supervision order – Paras 3.35-3.42 56 Initial Hearings: court requirements and party status - Para 3.43 58 Interim Orders – Paras 3.44-3.47 59 Duration of Interim Orders – Para 3.48 60 Directions on examination and assessment when an interim order is made – Paras 3.49-3.52 60 Including an exclusion requirement – Paras 3.53-3.56 62 Effects of, and responsibilities arising from, interim orders – Para 3.57 63 Effect of care orders – Paras 3.58-3.64 63 Discharge of care orders and discharge and variation of supervision orders – Paras 3.65-3.69 65 Appeals against care and supervision orders – Para 3.70 66 Contact with children in care – Paras 3.71-3.79 66 Supervision Orders – Paras 3.80-3.84 69 Wardship and the inherent jurisdiction of the High Court - Paras 3.85-3.88 71 5 CHAPTER4–PROTECTIONOFCHILDREN 73 Summary – Paras 4.1-4.5 73 Introduction – Paras 4.6-4.9 74 Child assessment orders section 43 – Paras 4.10-4.14 75 Commencement and duration – Paras 4.15-4.23 77 Practice issues – Para 4.24 79 Emergency Protection Orders, sections 44, 44A, 44B and 45 – Paras 4.25-4.31 79 The grounds for making an Emergency Protection order: Section 44 – Para 4.32 81 EPO on grounds that access to the child has been frustrated – Paras 4.33-4.38 82 EPO on general grounds – Paras 4.39-4.52 83 Court
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