Children’s rights legal digest – October 2022

This month, following a seven-year inquiry and the publication of 19 individual investigation reports, the Independent Inquiry into Child Sexual Abuse (IICSA) published its concluding report. Drawing on evidence from over 7,000 victims and survivors, this final report makes 20 recommendations to ensure children are better protected from child sexual abuse.

In this issue, we focus on one of the concluding recommendations – recommendation 6. Addressed to the UK Government and proposing an amendment to the Children Act 1989, recommendation 6 is designed to enable children in care to apply to court to restrict local authorities’ power to exercise their parental responsibility in respect of individual looked after children. We examine this recommendation and take this opportunity to set out the current legal framework.

The Independent Inquiry into Child Sexual Abuse proposes amending the Children Act 1989 to empower children in care to challenge local authority decision-making

Current legal framework

  • Care orders

Section 31 of the Children Act 1989 (Care and supervision) gives the family court the power to make a care order (or a supervision order) with respect to a child under the age of 17 if two conditions are met:

a) The court is satisfied that the child is suffering, or is likely to suffer, significant harm; AND

b) The harm, or likelihood of harm, is attributable to either inadequate care being given to the child (i.e., care is not what would be reasonably expected of a parent) OR the child being “beyond parental control”.

If a care order is made then, for the duration of that order, the local authority designated in the order to look after the child has parental responsibility for that child (section 33(3)(a)) and has the power to define (“determine”) the extent to which other persons with parental responsibility can exercise parental responsibility for the child (section 33(3)(b)). This means that local authorities have the power to limit the use of parental responsibility by others, including the child’s parents. This can involve, for instance, overriding parental objections to a specific decision (unless the law says otherwise). This power is not absolute, however, and section 33(4) prohibits local authorities from limiting the exercise of parental responsibility by others unless it is necessary to safeguard or promote the child’s welfare. (There are other exclusions that apply, such as changing a child’s name or their religion, taking them out of the country and consenting to adoption or the appointment of a guardian – see section 33(6)-(7)). 

[If you’re interested in learning more about the scope of local authorities’ parental responsibility for children in care, read the January 2022 issue of our children’s rights legal digest].

  • Section 8 of the Children Act 1989: child arrangements orders and other orders with respect to children

Section 8 sets out three different orders that can be made by the family court with respect to children:

A child arrangements order determines “(a) with whom a child is to live, spend time or otherwise have contact, and (b) when a child is to live, spend time or otherwise have contact with any person”.

A prohibited steps order defines a specific type of action or decision which must not be taken by any person with parental responsibility without the court’s permission.

A specific issue order is an order which involves the court giving specific directions connected to the exercise of parental responsibility for a child.

Section 9 of the Children Act 1989 places a number of statutory restrictions on section 8 orders, including:

– Generally speaking, a child arrangements order cannot be made with respect to a child who is looked after (section 9(1)).  

– A local authority cannot apply for a child arrangements order for a child it is looking after, nor can it be named in one (section 9(2)). (Section 10 lists the people who can apply for section 8 orders, including parents and guardians). 

– Courts cannot make a section 8 order with respect to a child who has reached the age of 16 unless there are exceptional circumstances (but a section 8 order can be varied or discharged after the child’s 16th birthday) (section 9(7)).

– Children have the right to apply for permission (‘leave’) to make an application for a section 8 order (section 10(8)) but the court may only grant leave if it is satisfied that the child has sufficient understanding to make the proposed application.

Proposed change to the Children Act 1989: rationale

Looked after children have been found by the Inquiry to be particularly vulnerable to sexual abuse and exploitation by virtue of both past trauma and the enduring, additional barriers to disclosing sexual abuse faced by children in care. The Inquiry further found that children are too often unheard and powerless. It considered the current legal framework, whereby independent reviewing officers (and Cafcass) can intervene to challenge local authorities, to be inadequate.

IICSA’s concluding report says:

“Young people in care are uniquely placed to identify what needs to change to keep them safe. They are often acutely aware that their vulnerability can be increased by problems such as ‘drift’ in their care planning, distance from their family and community, and living in inappropriate locations. Children in care are also in a different legal position – decisions are made on their behalf by local authorities, who act as their ‘corporate parent’ and organise their placement with alternative carers. Young people living in residential care may feel that they have little control or say over aspects of their lives. Whereas a young person in a family home might have the opportunity and ability to challenge their parents about issues such as school choice, or rules about going out in the evenings, who they can and cannot see and who they can have relationships with, young people in care may feel less able to test, discuss and bend rules.” (paras 33-34, p.177)

The report then goes on to say:

“…There are only limited routes by which children in care can compel a local authority to take a different approach to their care from one that [the local authority] proposes. The legal position of children in care should be improved, so that they can be empowered to challenge aspects of local authority decision-making for themselves.” (para 38, p.178)

While acknowledging the existing mechanisms available to children in care wanting to challenge local authorities, such as, for instance, the power of the independent reviewing officer to bring a child’s case to court (this is primarily via Cafcass, though the role and powers of this body is not considered by IICSA) or the ability to launch judicial review or human rights proceedings, the Inquiry pointed out the limited use of these measures in practice. Further, it wants children’s circumstances to be considered by a court which has the child’s welfare as the paramount consideration.  

The proposed change is designed to redress the current legal framework which allows family courts to make orders in respect of the exercise of parental responsibility about children who are not in care but not about those who are in care. Changing this would create “a route by which children in care can apply to the family courts for orders to mandate or limit a local authority’s exercise of its parental responsibility” (para 43, p.180). This would allow children to bring an application under the 1989 Act to “ensure that vulnerable children at risk of harm had recourse to court about a range of aspects of their care and that their welfare would be the court’s paramount consideration” (para 47, p.180).

Proposed amendment

Recommendation 6: Children Act 1989

The Inquiry recommends that the UK government amends the Children Act 1989 so that, in any case where a court is satisfied that there is reasonable cause to believe that a child who is in the care of a local authority is experiencing or is at risk of experiencing significant harm, on an application by or for that child, the court may:

• prohibit a local authority from taking any act (or proposed act) which it otherwise would be entitled to take in exercising its parental responsibility for the child; or

• give directions for the purpose of determining a specific question which has arisen, or which may arise, in connection with any aspect of the local authority’s exercise of parental responsibility for a child.

The Report of the Independent Inquiry into Child Sexual Abuse, October 2022 (page 180)

The Inquiry proposed a range of safeguards and procedural measures focused on children’s best interests, such as: ensuring “independence and authenticity of the child’s views”; care being taken to ensure children are not pressured into initiating court proceedings; accessibility to children in care of such proceedings; and availability of legal aid. It did not discuss the availability and function of independent advocates and children’s rights officers in implementing this proposed new legal protection, but clearly they would have a vital role in communicating this (and any other) new right, and helping children to use it. 

You can download the full report and the summary on the IICSA website.

To read about the recommended amendment to the Children Act 1989, please see paragraphs 28-50 of the report.