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Rosie requires advice concerning Kylie, 12, and Sam 7. We shall assume Steve has no parental responsibility for the children as stipulated by s.2(1) of the Children Act 1989, as the deceased Mother retained all rights over the children before her death. Upon the mother's death, the grandmother, Rosie was appointed legal guardian of the children under s.5(6), and therefore has parental responsibility for Kylie and Sam.
The social worker has indicated that an investigation will be initiated into the apparent problems suffered by the children. The apparent sexual acts Kylie is reported to have shown was only in displaying immature sexual behaviour as noted by Kylie's school who notified the authority. There are no specific details on what this inappropriate behaviour was, and the fact that the school chose to notify social services rather then Rosie who has ultimate responsibility for Kylie, is a disturbing fact. The other unsubstantiated problem relates to Kylie's weight gain, and the observation by a teacher that Kylie may be pregnant.
The concern with Sam appears to be his absence from school for a period of 32 days last term.
The social worker mentioned voluntary accommodation for Sam and Kylie, if Rosie was having difficulty in caring for the children as well as her dependant adult son, George, and has made threats to Rosie what would happen to the children if Rosie did not comply with the social worker's demands voluntarily.
The Children Act 1989 bounds together several important principles regarding a child under the age of majority, including the meaning of parental responsibility, defined by s.3(1) as: all rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.
This means that Rosie has the ultimate say over the provision of welfare and accommodation on behalf of Kylie and Sam.
The social worker is assuming that Rosie is encountering difficulties in caring for the children and has offered Rosie the opportunity to place Sam and Kylie into voluntary accommodation. Under s.20 of the 1989 Act, voluntary accommodation is usually at the request of, or agreement with the primary caregiver, i.e. Rosie. The local authority has a statutory duty to accommodate all such requests for children in need; the children themselves being placed in temporary residential or foster home care. It is important to note, that no court proceedings are required for a s.20, and full parental responsibility for the care and welfare of the child will remain with the parent (Rosie) until otherwise specified.
Rosie has stipulated that she does not wish for the children to live elsewhere. Were she to change her mind on this matter it should be noted that Rosie would continue to have access to Kylie and Sam as designated by statutory right of s.34(1)(b) of the Children Act. However, the social worker has threatened Rosie that unless she co-operates with them, the children may be removed. Under such pressure, Rosie may feel as if she should comply with the local authority's demands. Were Rosie to agree with the removal of Kylie and Sam into accommodation, it is important for Rosie to realise that, considering the attitude of the social worker towards her, the social services department may take steps to deny Rosie access to the children. This would be applied for under s.34(4) of the Children Act, as amended.
Before any of these steps are taken, under s.1(3) and s.1(4), the wishes and emotional feelings of Kylie and Sam must be taken into consideration. Rosie has concerns that the upheaval would result in emotional damage to the children. The United Nations convention on the rights of the child declared in Article 27, section 1, that parties of the state must recognize the right of the child to a standard of living caring for their emotional well-being, among other parameters.
Article 9 of the same convention clearly states that Government officials must not remove a child against their will, and may use their powers for removal only where circumstances can clearly justify that they are acting in the best interests of the child.
A child deprived of their right within the family home shall be entitled to assistance and protection by the state as per Article 20 of the convention.
The social worker raises concerns in relation to George in that he may be abusing Kylie. Although George was not convicted of a sexual offence, the stigma remains on him. Social Services, through their statutory powers maintained by the Children Act 1989, have a duty to protect a child from undue harm. The social worker must however, act within reason and be careful not to intrude into the family life of the children, as the Cleveland Affair so evidently demonstrates that uncorroborated evidence of sexual abuse wrongly resulted in over 700 children being removed from their family homes.
Furthermore, the social worker is duty bound to adhere to Article 8 of the Human Rights Act, which clearly states the incorporated right to respect for family and private life. This article has a key role in decisions made by social services on removing children into care.
The European Court of Human Rights has found Article 8 of the HRA to relate to grandparents and grandchildren, so long as there is evidence that there is defined involvement in the child's life; therefore Rosie is protected under this finding. However, Article 8(2) of the HRA states that although a Government official (e.g. a social worker) must not interfere with this right to family life, action may be taken without contravening that right if it is to protect the health and morals of a person.
The social worker may have legitimate concerns in relation to Kylie and Sam, and under Article 8(2) of the HRA may initiate investigations into the welfare of the children as the social worker thinks fit to do so.
The focus on Kylie appears to be her provocative sexual behaviour, and the fact that she has gained weight - a teacher suggested Kylie may be pregnant. Without leaning too far into the boundaries of criminal law, under s.8(1) of the Sexual Offences Act 2003, it is illegal to cause or incite a child under 13 (Kylie is 12) to engage in sexual activity. In Gillick, the case resulted on whether a child under the age of 16 had the capacity of maturity to consent to medical treatment. The situation revolved around the fact of contraceptives being issued to children under the age of 16, without parental consent. Lord Scarman and Lord Fraser differed in their opinions, but reached the same conclusion that the child must have sufficient understanding on the issue of consent. The Gillick case is regarded as a milestone in recognising adolescent rights. Kylie therefore has a choice in choosing whether to consent to a medical examination in relation to the suggestion that she is pregnant. However, if Kylie were to refuse, Rosie (having parental responsibility) could over-ride this decision and give consent on behalf of Kylie to submit to a pregnancy or any other necessary tests in relation to her condition. This was followed up in Re K, W and H where Gillick competent minors who refused medical treatment, consent was obtained by the child's parents. For Rosie to be entirely sure on the social worker's hinting that Kylie is pregnant, Rosie would benefit herself and Kylie if she were to allow Kylie to submit to a medical examination, so pregnancy could be ruled out, or action taken if the test was positive. If Rosie were to refuse her consent, the social worker could seek a court order for treatment as it would be in the best interests of the child. Furthermore, if Kylie was found to be Gillick competent and refused her consent and Rosie refused to give her consent, the local authority could ask the court for its authorisation instead as in Re E. The influence for the court's decision was the child's welfare which they considered to be paramount.
In relation to Sam, and the fact that he was absent from school for 32 days last term, s.7 of the Education Act 1996 stipulates that it is the duty of the parent of a school age child to ensure that the child receives full-time education. Parental rights in relation to education, although protected by the European Convention on Human Rights under Protocol 1, Article 2, has now been effectively eroded by the 1996 Education Act. Rosie as guardian has a duty to ensure Sam attends school on a regular basis, since the local authority could apply for a 'school attendance order' under s437 of the Act. This effectively requires Rosie to ensure Sam attends school within a notified time limit. Failure to adhere to this notice could lead to action being taken under s.443 and s.444 of the Act, where Rosie would be prosecuted for breaching the local authority's order. If the social worker deemed it fit, s/he could apply for an education supervision order under s.39 of the Children Act 1989. This in effect means Sam would be under the supervision of the local authority to ensure he attended school. In extreme circumstances, if the social worker is of the assumption that Sam is suffering 'significant harm', s/he could apply for a care order under s.31(1)(a) of the 1989 Act. The social worker requires substantial grounds for this order and must comply and meet the demands set out in s.31(2), which suggests that care proceedings are necessary for a child suffering significant harm. However, in this case, Sam was absent for a period of 32 days last term. There is no suggestion he has missed regular schooling at the present time. Furthermore, if the school had concerns regarding Sam's attendance rate, they should have raised the matter with Rosie at the earliest available opportunity for an explanation, not simply report the matter to the local authority.
Rosie has concerns that the children may be taken away from her against her wishes. Under s.1 of the Children Act 1989, the child's welfare is considered to be paramount. Case law substantiates this, along with Article 8 of the Human Rights Act which states that the rights and freedoms of all must be taken into account, particularly the best interests of the child. The leading case on the 'best interests' welfare principle was that of J v C where the House of Lords stated that all relevant factors, including the wishes of parents must be taken into account.
The social worker may be considering proceedings under s.20(1) of the 1989 Act, if s/he thinks Rosie is not providing adequate care for Kylie and Sam. However, s.20(7) clearly states that if Rosie objects to this, then the children could not be accommodated by the local authority. Furthermore, under a s.20, parental responsibility would remain at all times with Rosie, and judicial review proceedings could be held if the local authority ignored Rosie's parental powers.. If the social worker wishes to prevent this, the only route available would be to apply for emergency protection order and care proceedings under s.8.
The children's wishes and feelings must be taken into account, but, will treat them with caution as both children are less than 16 years of age. As a matter of procedure, a contested s.8 application would be referred to conciliation, where the social worker should try and negotiate with the children and Rosie and reach an amicable agreement as to what the next step should be.
However, in these circumstances, it is extremely unlikely a s.8 order would be successful; the Court, if required to do so, could be persuaded to issue a Family Assistance Order. This literally means that the social worker must befriend, assist and advise the family. It is a means of providing short-term assistance, and is not allowed to last for a period longer than 6 months, though it may be extended if required. A s.16 can only be made in exceptional circumstances, and only with the consent of Rosie.
The welfare principle as previously discussed has been criticised for its litigious properties. The preferable approach is now one of negotiation and amicable solutions, which should happen in Rosie's case. At all times, Rosie must remember she ahs parental responsibility for Kylie and Sam, and the social worker should not persuade her from that. She has a duty for their welfare as part of that responsibility, and in this case, negotiations and an informal agreement on any investigations would have to be agreed by Rosie herself, therefore Rosie should not fear the children will be removed from her home.
Cretney, Stephen, et al, Principles of Family Law, 7thy edn (2002), Sweet and Maxwell, London
Dodds, Malcolm, (ed), Textbook: Family Law, 3rd edn, (2001(, Old Bailey Press, London
Standley, Kate, Cases and Materials on Family law, (1997), Blackstone Press Ltd, London