Appendix B: Statutory framework |
The legislation relevant to safeguarding and promoting the welfare of children is set out below.
Section 10 requires each local authority to make arrangements to promote cooperation between the authority, each of the authority's relevant partners (see Table A) and such other persons or bodies who exercise functions or are engaged in activities in relation to children in the local authority’s area as the authority considers 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 and neglect alongside other outcomes.
Section 11 places duties on a range of organisations and individuals (see Table A) to make arrangements for ensuring that their functions, and any services that they contract out to others, are discharged with regard to the need to safeguard and promote the welfare of children.
Section 13 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 must be represented on the Board, including those which the Secretary of State prescribes in regulations.
Section 14 sets out the objectives of LSCBs, which are:
(a) | 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 |
(b) | 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 Local Safeguarding Children Board Regulations 2006 made under sections 13 and 14 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, Immigration Enforcement and the Border Force) has a duty to make arrangements to ensure that functions relating to immigration, asylum, nationality and customs, and any services that are contracted out to others in relation to such functions, are discharged or provided with regard to the need to safeguard and promote the welfare of children who are in the United Kingdom. Section 55 is intended to have the same effect as section 11 of the Children Act 2004.
Section 175 of the Education Act 2002 places a duty on:
to make arrangements for ensuring that such functions are exercised with a view to safeguarding and promoting the welfare of children (in the case of the school or institution, being those children who are either pupils at the school or who are students under 18 years of age attending the further education institution).
A similar duty applies to proprietors of independent schools (which include academies/free schools) by virtue of regulations made under sections 94(1) and (2) of the Education and Skills Act 2008.
Regulations made under Section 342 of the Education Act 1996, set out the requirements for a non-maintained special school to be approved and continue to be approved by the Secretary of State. It is a condition of approval and continuing approval that arrangements must be in place for safeguarding and promoting the health, safety and welfare of pupils and when making such arrangements, the proprietor of the school must have regard to any relevant guidance published by the Secretary of State.
The Children Act 1989 places a duty on local authorities to promote and safeguard the welfare of children in need in their area.
Section 17(1) states that it shall be the general duty of every local authority:
(a) | to safeguard and promote the welfare of children within their area who are in need; and |
(b) | 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:
(a) | 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 |
(b) | 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:
(a) | 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 of services by a local authority under Part III of the Children Act 1989; |
(b) | the child's health or development is likely to be significantly impaired, or further impaired, without the provision of such services; or |
(c) | 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.
Provisions relating to young carers and parent carers have been inserted into Part 3 of the Children Act 1989 by sections 96 and 97 of the Children and Families Act 2014. These provisions are expected to come into force on 1 April 2015.
Section 17ZA states that a local authority in England must assess whether a young carer within their area has needs for support and, if so, what those needs are. This is either where:
Section 17ZC requires a local authority that carries out a young carer’s needs assessment to consider the assessment and decide –
Section 17ZD states that a local authority in England must assess whether a parent carer of a disabled child who lives within their area has needs for support and, if so, what those needs are, if:
The local authority need not carry out a young carer’s assessment (under section 17ZA) or a parent carer’s assessment (under section 17ZD) if the local authority has previously carried out a care-related assessment of the young carer/parent carer in relation to the same person cared for, unless it appears to the authority that the needs or circumstances of the young carer/parent carer or the person they care for have changed since the last care-related assessment.
Section 17ZF requires the local authority that carries out a parent carer’s needs assessment to consider the assessment and decide:
Section 27 imposes a duty on other local authorities, local authority housing services and health bodies (see Table A) to cooperate with a local authority in the exercise of that authority’s duties under Part 3 of the Act which relate to local authority support for children and families. Where it appears to a local authority that any authority or body mentioned in section 27(3) could, by taking any specified action, help in the exercise of any of their functions under Part 3 of the Act, they may request the help of that other authority or body, specifying the action in question. An authority or body whose help is so requested must comply with the request if it is compatible with their own statutory or other duties and obligations and does not unduly prejudice the discharge of any of their functions. The authorities are:
(a) | any local authority; |
(b) | any local housing authority; |
(c) | NHS England; |
(d) | any clinical commissioning group, Special Health Authority National Health Service Trust or NHS Foundation Trust; and |
(e) | any person authorised by the Secretary of State for the purpose of section 27. |
Section 47(1) states that:
Where a local authority:
(a) | are informed that a child who lives, or is found, in their area (i) is the subject of an emergency protection order, or (ii) is in police protection; or |
(b) | have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm: |
the authority must make, or cause to be made, such enquires as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare.
Section 47(9) places a duty on persons mentioned in section 47(11) (see Table A) where a local authority is conducting enquiries under section 47, to assist them with these enquiries (in particular by providing relevant information and advice) if called upon by the local authority to do so. Both section 17 and section 47 of the Children Act 1989, to require in each case that in order to help it to determine what services to provide or what action to take, the local authority must, so far as is reasonably practicable and consistent with the child’s welfare:
(a) | ascertain the child's wishes and feelings regarding the provision of those services or the action to be taken; and |
(b) | give due consideration (with regard to the child's age and understanding) to such wishes and feelings of the child as they have been able to ascertain. |
The court may make an emergency protection order with respect to a child under section 44 of the Children Act 1989 on application by any person, if it is satisfied that there is reasonable cause to believe that a child is likely to suffer significant harm if the child:
An emergency protection order may also be made by the court on the application of a local authority or an authorised person (i.e. a person authorised to apply to the court for care orders or supervision orders under section 31 of the Act) if the court is satisfied that:
In addition, where the applicant is an authorised person the court must be satisfied that the applicant has reasonable cause to suspect that a child is suffering, or is likely to suffer, significant harm.
An emergency protection order gives authority to remove a child to accommodation provided by or on behalf of the applicant and place the child under the protection of the applicant, amongst other things.
The court may include an exclusion requirement in an interim care order or emergency protection order (section 38A and 44A of the Children Act 1989). This allows a perpetrator to be removed from or be prohibited entrance to the home or to be excluded from a defined area in which the home is situated, instead of having to remove the child form the home. The court must be satisfied that:
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, the officer may:
No child may be kept in police protection for more than 72 hours.
Under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPOA), all children remanded in criminal proceedings will be looked after. Children may be remanded to accommodation provided by the local authority or to youth detention accommodation (YDA). The authority responsible for a child who becomes looked after following remand is usually the one where the child normally lives, but where there is a doubt about this the court may initially determine which authority should be designated as being responsible for the child’s care.
Where a child is remanded to local authority accommodation, the local authority’s care planning responsibilities will be the same as for any other looked after child (though authorities are not required to produce a “plan for permanence” for this group of children). Where a child, including a child already looked after, is remanded to YDA, the local authority will be required to produce a Detention Placement Plan, describing the arrangements for responding to the child’s needs whilst they are detained. The Care Planning, Placement and Case Review Regulations 2010, as amended, take LASPOA into account.
Section 1 (8)(h) requires the police and crime commissioner for a police area to hold the relevant chief constable to account for the exercise of the latter’s duties in relation to safeguarding children and promoting their welfare under section 10 and section 11 of the Children Act 2004.
Section 40 requires early years providers registered on the Early Years Register and schools providing early years childcare to comply with the welfare requirements of the Early Years Foundation Stage.
Section 38 requires local authorities, acting in cooperation with certain persons (including every Chief Police Officer or local policing body whose area lies within that of the local authority, clinical commissioning groups and providers of probation services), to such extent as is appropriate for their area, to secure that youth justice services are available in their area, such services to include the provision of persons to act as appropriate adults to safeguard the interests of children and young persons detained or questioned by police officers.
Section 213A requires housing authorities to refer to adult social care services persons with whom children normally reside or might reasonably be expected to reside, who they have reason to believe may be ineligible for assistance, or who may be homeless and may have become so intentionally or who may be threatened with homelessness intentionally, 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.
Body | CA 2004 Section 10 - duty to cooperate | CA 2004 Section 11 - duty to safeguard & promote welfare | Education Legislation - duty to safeguard & promote welfare | CA 2004 Section 13 - statutory partners in LSCBs | CA 1989 Section 27 - help with children in need | CA 1989 Section 47 - help with enquiries about significant harm |
Local authorities and District councils | x | x | x In relation to their education functions under section 175 of the Education Act 2002 |
x | x (including local housing authority) |
x (including local housing authority) |
Local policing body | x | x | ||||
Chief officer of police | x | x | x | |||
SoS re probation services’ functions under s2 and 3 of the Offender Management Act (OMA) 2007 | x | x (including Community Rehabilitation Companies (by virtue of contractual arrangements entered into with the SoS) |
x | |||
Providers of probation services required under s3(2) OMA 2007 to act as relevant partner of a local authority | x | x | ||||
British Transport Police | x | |||||
National Crime Agency | ||||||
UK Visas and Immigration, Immigration Enforcement and the Border Force | x Section 55 of the Borders, Citizenship and Immigration Act 2009 applies same duty as section 11 |
|||||
Governor or director of prison (which ordinarily detains children) or secure training centre (and principal of secure college) | x | x |
||||
Youth offending services | x | x | x | |||
NHS England | x | x | x | x | x | |
Clinical commissioning groups | x | x | x | x | x | |
Special Health Authorities | x | x | ||||
NHS Trusts and NHS Foundation Trusts | x | x | x | x | ||
Cafcass | x | |||||
Persons providing services pursuant to section 68 of the Education and Skills Act 2008 | x | x | ||||
Persons providing services pursuant to section 74 of the Education and Skills Act 2008 | x | |||||
Maintained schools | x (includes non-maintained special schools) |
x under section 175 of the Education Act 2002 (maintained schools) & via regulations made under section 342 of the Education Act 1996 (non- maintained special schools) |
||||
FE colleges | x | x under section 175 of the Education Act 2002 |
||||
Independent schools | x Via regulations made under sections 94(1) and (2) of the Education and Skills Act 2008 |
|||||
Academies and Free Schools | x | x Via regulations made under sections 94(1) and (2) of the Education and Skills Act 2008 |
||||
Contracted services including those provided by voluntary organisations | x |