The Children Act 1989 sets out legislation that protects the rights of children in this country. The Act outlines all duties, regulations, procedures and powers to protect children from harm. Underpinning the Act are five main principles that emphasise the child's welfare as the paramount consideration above all else. This essay will critically consider a hypothetical scenario concerning the welfare of a young child named Paul.
By looking closely at the Children Act 1989 in relation to the case and gaining key understanding of the British legal system with a focus on family law, the extent that the Children Act 1989 protects children from harm can be examined (Allen, 2005). The Children Act provides every Local Authority (LA) with the powers to fulfil its duty to 'safeguard and promote the welfare of the child' (Allen, 2005, P93). This duty requires the LA to take reasonable steps to prevent any child from suffering harm. The scenario suggests that Paul has suffered non-accidental injuries while being cared for within the family.
As a generalisation, it is felt that the child's interests are best dealt with by remaining with their families. Indeed, it is the duty of the LA to promote the upbringing of a child in this way. However, the Act does not require the LA to do so if the child's welfare is being compromised. Consequently, an Emergency Protection Order (EPO) was granted by the local magistrate in order to remove Paul from risk of harm. An EPO has effect for a period of eight days with one extension available after application back to the magistrates court.
Interestingly, an EPO can be granted on an ex parte basis by only one magistrate. However, removing a person's child via an EPO infringes on Article 8 of the European Convention on Human Rights (also incorporated in the Human Rights Act 1997)(Allen, 2005). Therefore, an EPO must be fully justified, while there is also a necessity for swift action in cases where there is suspicion that a child may be in immediate danger of harm. Indeed, the Every Child Matters Green Paper also stresses the importance of timely decision making (Brayne and Carr, 2005).
However, the parents do in fact maintain their parental responsibility and have a right to appeal against the EPO. Interestingly, this legal responsibility is shared with the LA for the period while the EPO is in force, until the court hearing (Allen, 2005). The court can consider a number of orders when dealing with an application which is concerned with family proceedings. Section 8 orders are mainly associated with private law cases. Most LA applications concern care or supervision orders.
In Paul's case the LA have applied for an interim care order, which can be made pending a full hearing and has effect for a period not longer than eight weeks in the first instant. A supplementary application can be granted for no more than a further four weeks. Applications for care orders can be granted by the family proceedings court (Laken at al, 1997). Family law cases are initially heard in the family proceedings court. Three magistrates form the Family Panel; a balanced selection of male and female members is required to maintain an unbiased representation.
Members of the Family Panel are made up of magistrates who must have received specialist training in preparation for the complexities and seriousness of the decisions they will be called upon to make. This training aims to ensure that magistrates understand the application of the Children Act 1989 (Laken at al, 1997). This important protocol has been ignored in the scenario. There are only two magistrates, both female who have no specialist training. They have entered the court discussing their opinions freely with no concern for confidentiality or the sensitive nature of the case.
The magistrates appear to be related to each other and to the family. Therefore, the magistrates are undermining the concept that the child's best interests must be considered without personal motivation. This may cause delay to the case going ahead. Therefore the non-delay principle is being neglected. In addition to the magistrates the Legal Advisor has an important role in the proceedings (Allen, 2005). It is the legal advisors duty to inform the magistrates, as with criminal proceedings, on aspects of law, practice, procedure and evidence.
However, in family proceedings the legal advisor also records the magistrate's findings during their private discussions. This role is not concerned with manipulating the discussion but with ensuring that the correct legal procedures are being followed. Indeed, the Legal Advisors role requires legal training. In the case of the scenario it appears that this is not the case. Consequently, the magistrates have no legal advice should they need it, potentially impacting on their ability to come to an informed decision (Laken et al, 1997).
Not all courts are identical in their layout but it is useful to recognise that family proceedings courts aim to reflect an emphasis on co-operation between the parties. Therefore, a relaxed and informal layout can be expected. Parties typically sit round a large table to prevent confrontation and intimidation, therefore avoiding hindrance to proceedings (Magistrates Association, 2003). However, in the scenario this ethos has been overlooked. Paul and his Father have found themselves in the middle of the court, hindering communication between the family and the other parties.
The magistrates and the expert witnesses have been seated at the back of the court which may interfere with the giving and receiving of evidence. The applicant solicitor and the foster parents are seated in close proximity to the family. Considering the Fathers known aggression this situation may aggravate any potential for conflict. Ignoring the recommendations for a relaxed atmosphere may impede the welfare principle considering Paul has been unjustly put in a confrontational situation. However, it is the duty of the Children's Guardian to ensure that the child's interests are considered (Allen, 2005).