Public Law – Understanding the Local Authority and Children
When a local authority is concerned about the parenting a child is receiving, and these concerns are sufficiently high, they can issue court proceedings in respect of the child.
When a local authority is involved with a family legally this is called public law. This allows the state to intervene in the life of a family to ensure that a child is protected and being brought up in a safe environment.
The local authority can either monitor and assist a family, or in serious cases they can apply to share parental responsibility.
The people who have the legal duty to make important decisions about a child’s upbringing and welfare are those who have parental responsibility for the child. In essence parental responsibility reflects the everyday reality of being a parent and taking the necessary decisions for the child’s welfare. It exists for the benefit of the child and can be ascribed to others in addition to biological parents.
The mother will have parental responsibility on giving birth.
The father will have it if he was married to the mother (at the time of the child’s birth or subsequently), or is on the birth certificate, or has been given parental responsibility by a court order, or by means of an agreement signed with the mother and registered with the court.
The Court can also grant parental responsibility to the local authority, or to a father without PR, or a non-parent carer with who the child is living if granted a child arrangement “live with” order, or in the case of a non-parent, a special guardianship order.
If a father does not have parental responsibility the court must also consider granting the father parental responsibly under any child arrangements “spend time” with order.
The acquiring of parental responsibility will not extinguish that of the holder by additional people or the local authority being granted this, but rather it will be shared.
Parental responsibility however, can be extinguished. When a child is adopted parental responsibility is granted to the adoptive parents to the exclusion of all others who may have held it previously – including the biological mother.
It can also be removed from a parent without adoption by the court but only in very rare and extreme circumstances.
The duty and responsibility of the local authority
If the local authority considers that a child is not receiving good enough care from his or her carers, mostly the parents, or is beyond their control, then it has a duty to provide support and help and work with the carers to try and make sure that the child’s needs are met. The local authority must work in partnership with families in providing this help and make every reasonable effort to ensure that the family is able to make the necessary changes through support to retain their child and continue to care for their child. The local authority engages with families through social workers in their children’s services departments.
If the family is unable to work with children’s services to make progress in caring for their child safely and adequately then the local authority can apply to the court for orders, which will allow them to take further action to protect the child.
The two most common orders in public law proceedings are Supervision and Care Orders.
This order directs the local authority to arrange for a social worker to stay involved with the child and his/her family and “advise, assist and befriend” the child. The child’s parents must keep the social worker informed about where the child is living, and let the social worker see the child. For the duration of the Supervision Order a social worker can visit the family home unannounced as well as on a scheduled basis.
When making this order, the court can place a positive obligation on the parent in regards to working with the social worker in the way they request in certain aspects of the child’s life, e.g. in relation to activities the child should take part in, or appointments he/she should attend.
Under a supervision order the local authority does not have parental responsibility for the child. However because they are closely involved with the family and the child if there is any deterioration in the care of the child or if there is a breakdown in cooperation between the family and the social worker the local authority may return to court to ask for Care Order.
The Supervision Order usually lasts for 6-12 months, but can be renewed for a maximum of three years.
This order gives parental responsibility to the local authority so that they have the power to make decisions about the child’s care and upbringing. In addition they can determine how others may exercise their parental responsibility so that parents cannot act in an incompatible way.
The Court can only make a Care Order if it is satisfied that the child is suffering, or likely to suffer, significant harm through the care not being what it would be expected a reasonable parent should give to a child, or a lack of adequate parental care or control.
Emergency Protection Orders
In urgent cases a court can also make this order in exceptional cases. It allows the local authority to remove a child from the parents’ care or prevent the parents removing the child from a particular place (e.g. a hospital). The Court can only make the order if it considers that the child is likely to suffer significant harm if this action is not taken, or if they are being prevented from getting to see the child and there is evidence that the child may be suffering significant harm.
If the local authority applies for an Emergency Protection Order, Care or Supervision Order the parents are entitled to non means and non-merits tested legal aid, to enable them to have free legal representation, regardless of their income. It is very important that parents have a solicitor in these proceedings to make sure that their case is put to the court and they are kept fully informed about and understand what is happening.