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Roger Allen Birch examines children and welfare issues in the context of local authority duties and the potential impact of the Children and Social Work Bill currently being considered by Parliament.
Public law involves the local authority in having an ‘overarching responsibility' safeguarding and promoting the welfare of all children and young people in their area (Working Together to Safeguard Children: Department for Education, March 2015 (the guidance)). The guidance defines safeguarding and promoting the welfare of children as:
Local agencies, including the police and health services, also have a duty under section 11 of the Children Act 2004 to ensure that they consider the need to safeguard and promote the welfare of children when carrying out their functions.
Appendix A to the guidance sets out a series of definitions concerning:
It is interesting to note that Appendix A to the guidance defines a child as:
‘Anyone who has not yet reached their 18th birthday. The fact that a child has reached 16 years of age, is living independently or is in further education, is a member of the armed forces, is in hospital or in custody in the secure estate, does not change his/her status or entitlements to services or protection.’
Putting it in simple terms, public law involves the intervention of the state in the lives of families. It is accepted that parents are best placed to make decisions about the care of their children, so state intervention should only happen when a child is at risk. The court will not approve state intervention (care proceedings) unless the threshold criteria at section 31 of the Children Act 1989 is met. As said in Re B (Care Proceedings: Appeal)  UKSC 33,  2 FLR 1075:
‘Apart from adoption, a care order represents the most fundamental intervention in family life and will only be made where the court is satisfied that no other measure will protect the child or children in question. Furthermore, where the care plan is for adoption, it is the decision of last resort and should only be made where there is no other option available.’
Clearly, permanent placement by the the removal of a child and/or children from their parents and family interferes with the ch
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